Can a personal representative use an exemplified copy of a will instead of the original will? – South Carolina

Short Answer

Usually not for the original informal probate of a South Carolina will. The Probate Court generally must possess the original will, but it may accept an authenticated or exemplified copy when the will was already probated in another jurisdiction or when another statutory exception applies. Paying the required fee allows the probate office to issue the exemplified copy; it does not, by itself, determine whether that copy can replace the original.

Understanding the Problem

Can a personal representative use an exemplified copy to administer a South Carolina probate estate when the original will is unavailable or remains in another court? The answer depends on whether this is the will’s first probate, whether another jurisdiction has already admitted it to probate, and when the filing occurs.

Apply the Law

South Carolina distinguishes an original probate from a filing based on a will already probated elsewhere. An exemplified copy is a copy authenticated through additional court certifications. It proves that the copy matches a court record, but it does not automatically have the same function as the original will in every proceeding.

Key Requirements

Original South Carolina probate: For informal probate, the Probate Court generally must possess the original, properly executed, and apparently unrevoked will.
Prior probate elsewhere: If another jurisdiction already probated the will, an interested person may submit an authenticated copy of the will together with the other court’s statement or order admitting it to probate.
Proper authentication: The copy must carry the certifications required to establish that it is an official court record. A regular photocopy or even a basic certified copy may not satisfy a request for an exemplified copy.
Correct Probate Court: A resident’s estate generally proceeds in the Probate Court for the county of domicile. For a nonresident, venue may lie in a South Carolina county where the decedent owned property.
Timely proceeding: Most original probate or appointment proceedings must begin within ten years after death, subject to limited statutory exceptions.

What the Statutes Say

S.C. Code Ann. § 62-3-303 (Proof required for informal probate) – Requires the original will for ordinary informal probate but permits authenticated copies in specified out-of-state situations.
S.C. Code Ann. § 62-3-301 (Informal probate application) – Requires the application to identify whether the court has the original or whether an authenticated copy of a will probated elsewhere accompanies the filing.
S.C. Code Ann. § 62-4-204 (Foreign personal representative’s proof of authority) – Allows a foreign personal representative to file authenticated copies of the appointment and will in a South Carolina county where estate property is located, if no local proceeding is pending.
S.C. Code Ann. § 62-3-402 (Formal probate when the original is unavailable) – Provides a formal process for a will that is lost, destroyed, or otherwise unavailable.
S.C. Code Ann. § 62-2-901 (Delivery of a will) – Requires a person holding the will to deliver it within thirty days after receiving actual notice or knowledge of the death.
S.C. Code Ann. § 8-21-770 (Probate Court fees) – Establishes a standard fee for issuing an exemplified or authenticated copy.

Analysis

Apply the Rule to the Facts: The probate office may require payment of the statutory fee before issuing the requested exemplified copy. That copy can serve as authenticated proof if the will was previously probated and the receiving court permits the authenticated-copy procedure. If this is the first informal probate of a South Carolina resident’s will, however, the exemplified copy ordinarily cannot replace the original.

If the original cannot be located and no court has previously probated the will, the proposed personal representative may need a formal testacy proceeding. The petition must explain that the original is lost, destroyed, or otherwise unavailable and state the will’s contents. The proceeding requires notice and a hearing, and the court may require evidence supporting execution, validity, and nonrevocation.

Process & Timing

Who files: An interested person or, where applicable, a foreign personal representative. Where: The Probate Court in the decedent’s South Carolina county of domicile, or for a nonresident, a county where the decedent owned property. What: The original will for ordinary informal probate, or an authenticated copy of the will and the prior court’s probate statement when another jurisdiction already probated it. When: Original probate generally must begin within ten years after death.
The Probate Court reviews the application, authentication, venue, prior appointment, and probate history. The requesting party must pay the required fee before the office issues the exemplified copy. Additional guidance appears in this article about obtaining an exemplified copy of an out-of-state probated will.
If no prior probate supports use of an authenticated copy and the original remains unavailable, an interested person may file a formal probate petition, serve the required parties, and obtain a court order deciding whether the copy may establish the will.

Exceptions & Pitfalls

A previously probated out-of-state will receives different treatment from a mere photocopy of an unprobated will.
An exemplified copy of the will may not be enough by itself; the South Carolina filing may also require an authenticated copy of the prior probate statement or appointment.
If local administration or an application is already pending in South Carolina, the simplified filing procedure for a foreign personal representative may not apply.
When the original is missing, filing the copy as though it were an original informal probate document can delay the estate. The formal petition must identify the original as lost, destroyed, or unavailable.
Authentication requirements and filing practices can vary by county. The issuing court’s fee requirement concerns production of the copy, not its legal acceptance by the receiving court.

Conclusion

A personal representative generally cannot use an exemplified copy instead of the original for the first informal probate of a South Carolina will. An authenticated copy may work when another jurisdiction already probated the will or a statutory exception applies. Otherwise, the missing original may require formal probate. The next step is to file the original with the proper Probate Court before the ten-year probate limit expires or, when permitted, file the authenticated will and prior probate statement; informal probate of a will previously probated elsewhere may be granted at any time.

Talk to a Probate Attorney

If an original will is unavailable or another court holds the probate record, our firm has experienced attorneys who can help determine whether an exemplified copy will satisfy South Carolina requirements and explain the correct filing process.

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.