Do I Need to Open an Estate?

Following the death of a loved one, many clients come to PMC Law Firm to get help determining if they need to open an estate. Often, they are surprised to learn that going through probate is not always necessary or even advisable. Although every case is different, here are some factors to consider after a loved one passes away.

Wrongful Death or Survival Litigation

We often consult with clients who have lost a loved one due to some form of neglect or a tragic accident. Examples include nursing home neglect, auto accidents, or medical malpractice. Even if the loved one had no other assets to be transferred after death, an estate will still need to be opened.

Under South Carolina law, the only party who can investigate or file a legal action on behalf of a decedent is the personal representative which requires appointment by the probate court. If the decedent has no other assets, your attorney can advise you of simple procedures that may allow you to avoid some of the hassles of probate under this circumstance, but the opening of some form of estate and assistance of legal counsel will be necessary for this circumstance.

Titled Assets

If the Decedent owns any assets that are titled, probate may be required. The key to this determination is to understand whether or not the assets qualify as non-probate assets or whether probate will be needed to transfer title after.

Here are a few examples of titled property:

Real Property

Examples of real property include a home, vacant land, and condos. If real property was held solely in the name of the decedent, it must pass through probate to be deeded to its new owner. If it was shared jointly with another owner, you should bring a copy of the deed to your consult so that the attorney can advise you if probate is necessary.

In South Carolina, certain forms of ownership such as joint ownership with rights of survivorship, pass automatically to the co-owner and can avoid the probate process. This is an example of a non-probate asset because it does not need to pass through probate court to transfer ownership to the other owner.


Automobiles, boats, and recreational vehicles are all titled assets. If the decedent owned these assets alone, then the probate process will be required to pass them to the heirs of the estate. If, however, the vehicle is jointly owned, it may be possible to avoid this process. Again, bringing a copy of your car title to the consult will aid the attorney in advising you if the vehicle is a probate or non-probate asset.

Financial Accounts

Many financial accounts, such as bank accounts, CD’s, and retirement accounts are considered non-probate and can avoid the probate process if they have a named beneficiary or are jointly owned with rights of survivorship. However, if the account is held jointly, but not with rights of survivorship, then probate will be required.

Creditor’s Claims

Creditors come in many forms, including a spouse or family member who is owed reimbursement for funeral expenses or a credit card company owed a balance. An estate must be opened for a claim to be filed, which makes creditor claims a complex probate issue. In certain circumstances, the existence of creditors is a reason not to open the estate. However, in other cases, if you don’t open the estate, then the creditor has the right to do so. It’s advisable to discuss creditors in your consultation so your attorney can have a better idea of how to advise you.

Business / Tax Matters

In some instances, a probate estate must be opened to deal with business or tax matters. In many situations, this can be avoided, but only after consulting with qualified legal counsel.

Request a Consultation with Our Experienced Probate Attorneys

It is always advisable to take advantage of reduced fee legal consults to determine if an estate must be opened, and if so, what type of estate might be utilized. Our attorneys are available to review your assets and the circumstances unique to your case to determine if probate can be avoided or if a limited probate option might be available.

To schedule a case consultation with PMC Law Firm, please give us a call today at (800) 914-0620.