Difference in Probate Laws Between South Carolina & New Jersey

by Wayne Thomas
    Your will must be submitted to the probate court within 30 days after death in South Carolina.

    Your will must be submitted to the probate court within 30 days after death in South Carolina.

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    Having a connection to both South Carolina and New Jersey can add a layer of complexity to your estate planning process. After your death, property you owned will need to be transferred to your heirs through the court process known as probate. Understanding how the laws differ in these two states, as well as how some of the discrepancies can be minimized by having a valid will in place, will help your loved ones avoid complications when it comes time to probate your estate.

    Overview of Probate

    Both South Carolina and New Jersey require that your property be collected, inventoried and transferred to your heirs after your death. This process is known as probate, and it is first initiated in the state where you were residing at the time of death. If you owned property in another state, a separate probate action, referred to as ancillary probate, will be opened in that state as well. Probate is handled by a personal representative, who is either named in your will or appointed by the court. The personal representative is subject to the laws of the state where the probate action is filed.

    Procedural Differences

    If you pass away while domiciled in South Carolina and leave a valid will, state law requires that the will be delivered to the probate court within 30 days after your death. If you pass away without a will, your heirs must submit paperwork to the probate court to initiate the process, but there is no time deadline to apply. In New Jersey, you may submit the will or file the paperwork for probate, if there is no will, at any time. However, regardless of when you submit the will or the probate forms, the process will not start until at least 10 days have passed since the date of death.

    Small Estate Rules

    South Carolina offers an alternative probate process for certain estates, regardless of whether you had a will. The process is informal and can often be completed within a day, as opposed to taking up to a year through the normal probate procedure. To qualify, you must have owned no real estate, and the total value of your property must not be greater than $10,000. A small estate procedure cannot be initiated until at least 30 days have passed since your death, even if a will is submitted earlier. By contrast, New Jersey requires all wills to be declared valid through the standard probate process, provided you owned property and regardless of its value. Once the will is proved, or if no valid will is present, property in small estates can then be transferred outside of court through affidavits. For this procedure to apply, you must have either left a surviving spouse and an estate of less than $20,000, or no spouse, but surviving kin, and an estate valued at no more than $10,000.

    Distribution of Property

    If you pass away leaving a valid will, your property transfers according to your wishes. However, state laws differs on how much each of your relatives will inherit if no will is in place. In both South Carolina and New Jersey, if you leave a surviving spouse and no children or parents, your spouse inherits the entire estate. If you leave children, South Carolina provides that one half of the estate is divided equally between the children and the other half goes to your spouse. The children take all of the estate if you leave no surviving spouse. If you leave no surviving spouse or children, the estate goes to your parents. By contrast, in New Jersey, your surviving spouse receives your entire estate if you have children of the marriage. If you have other children outside the marriage, or have no children but leave a surviving parent, your surviving spouse must share a portion of the estate with these relatives.

    About the Author

    Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."

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