AN ABBREVIATED PROBATE ADMINISTRATION: AFFIDAVIT OF COLLECTION OF PERSONAL PROPERTY

            Sometimes people die owning very little property. They don’t own a home or any other real property.  Maybe they just have a small checking account at their local bank or maybe a savings account.  Maybe all they have is a final paycheck from their employer or they’re due a capital credits check from their local telephone or elective cooperative.

            Often, these are people who died too young with little time to accumulate any amount of wealth. Other times they’re an elderly person living in a nursing home who has disposed of all of their assets and are receiving governmental benefits to help pay for their care.  Or they might be a person of modest or moderate means who planned well so that most or all of their property passes outside probate except for one or two unexpected items that must be probated after their death. Our state’s probate laws make it relatively easy for the family of these deceased persons to acquire and obtain their property after their death. Technically, the process is a type of probate administration but it’s the simplest and quickest available if you qualify. 

            The South Carolina Probate Code allows a deceased person’s family to collect and receive up to $25,000 in property on behalf of the deceased person and distribute it to those persons, usually family members, entitled to such property. The collection and receipt of the deceased person’s property can be accomplished very simply without having to go through a full probate administration and without the necessity of having a personal representative appointed to collect, handle and ultimately retitle such property.

            This small probate administration procedure allows a family member to file a single form in the probate court, called an “Affidavit for Collection of Personal Property Pursuant to Small Estate Procedure”, and through the filing of the Affidavit for Collection, obtain an order from the probate court directing the deceased person’s property to be turned over, transferred and/or retitled to the deceased’s heirs or to the persons entitled to receive the property under the deceased’s last will and testament (which must also be filed with the probate court).

The Affidavit for Collection of Personal Property can be used under the following conditions:

(1)          If the total value of the deceased person’s “probate property” (determined after deducting any liens and encumbrances) does not exceed $25,000 and does not include any real estate;

(2)          Thirty (30) days has passed since the person’s death;

(3)          No personal representative has previously been appointed by the probate court (and no application or petition for appointment of a personal representative is pending in any court); and

(4)          The Affidavit for Collection is filed and sworn to by or on behalf of a person who is entitled to the property of the deceased person (such as an heir at law or devisee under the deceased’s will and, if there is a will, it also must be filed with the probate court).

            If all of these conditions are met, those persons entitled to the deceased person’s property under their last will and testament (or if such person died without a Will, by our inheritance laws) may collect and divide the deceased person’s probate property by using the Affidavit for Collection of Personal Property procedure. This procedure can be used to obtain the deceased person’s bank account balance, final paycheck, refunds due the deceased person, investment account balances, and other types of intangible personal property or monies due or payable to the deceased person.  In addition, this Affidavit procedure can be used to change the registered ownership of any security on the books of a corporation.  It may also be used to retitle an automobile, motorcycle or boat with the appropriate governmental agency.

            In addition, the Affidavit procedure can now be used to allow anyone who has paid reasonable funeral expenses for the deceased to be reimbursed through the deceased’s property before the heirs or devisees receive any property under the Affidavit.  This is a new addition under our code that became effective in 2014, and it allows those who step up to help pay for a person’s funeral expenses to seek reimbursement under circumstances that were not previously available.

            The Affidavit for Collection of Personal Property procedure allows families to avoid what may be a more complicated, lengthy probate administration that is often required after a person dies.  It is an invaluable method of collecting small amounts of personal property owned by a deceased person (now up to $25,000 in value) and it can usually be accomplished very quickly with little paperwork and expense.  I encourage anyone who can to take advantage of this Affidavit for Collection of Personal Property procedure to do so.  It’s simple, inexpensive, and quick, and it may be all that you need in order to properly collect and obtain your loved one’s property after their death.

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)