Immediately upon appointment, the P.R. agrees to accept certain duties. These duties can be found in Article 3, Part 7 of S.C. Probate Code for those interested in reading them in-depth. The first specific duty you will find is 62-3-705 – the duty to inform heirs and devisees of your appointment.
DUTY TO INFORM – Within 30 days of your appointment, you should have notified all heirs (those who receive if there is not a will) and devisees (those who are named in the will) of your appointment. Promptly complete the form, send it to everyone who is an heir or devisee. Then, complete the proof of delivery form to notify the court you have complied with this requirement. This seems easy enough, but this simple task is often handled improperly or ignored, which simply sets the stage for future disputes.
Be aware of the following mistakes:
- “I don’t have to inform them, they aren’t in the will.” – The first fatal mistake made by P.R.’s is assuming they only have to send this form to people who will actually be receiving from the estate. This is not true. The purpose of this form is to put everyone on notice, even those who have been disinherited, that the estate has been opened. The opening of the estate triggers numerous deadlines for interested parties to bring an action including will contests, elective share claims, and others. Because of this, everyone who has an interest in this person’s estate is to be notified. In cases where there is no will (intestacy), you will only have one group to notify – all intestate heirs. If; however, there is a will you may have two separate groups. The first group is those listed in the will (whether they are family or not) and the second group is those that would have received it the will was not in place (intestate heirs). Failing to notify someone can cause great delays in the estate. Furthermore, completing the form to say that you have notified someone when in fact you have not is considered perjury.
- “I am close with my family and they already know I’m in charge.” – Despite the fact that everyone may already know of your appointment, you still must follow the court process for giving them “official” notice. People often assume that they don’t need to do this because they have already verbally communicated with everyone to let them know. Keep in mind that this form contains information essential for others to contact the court, including the case number and the actual date of your appointment. It’s unlikely that these details are mentioned in casual conversation and even if they are, it’s just easier to follow the rules then to make assumptions that will later get you in trouble.
- “I’m not sure where this person lives.” – The Probate Courts hear this excuse all the time and unfortunately for the new P.R., they are uninterested in hearing it again. If you have taken on the duty to serve as P.R., it will be essential for you to establish communications with the parties interested in this estate. Very frequently, people who offer this excuse know exactly where the person is, they just hope that this will somehow eliminate the need for keeping them involved. It does not. So, before telling the court that you can’t find an heir or devisee, you must ensure that you have used every available resource to locate them. This includes letters to other interested parties to determine their location, an exhaustive internet search, certified mail sent to their last known address, a public records search, etc. In the end, it is very very rare that an heir actually can not be located. And, if you truly can’t find them you will need an attorney to assist you on their behalf. So, know before you go to court with this excuse that it’s unlikely to work and if it’s, in fact, true, the court will expect the resources of the estate to be used to resolve the problem.
- “I didn’t think I had to let them know because they are minors.” – Even children are entitled to be informed. When dealing with heirs or devisees who are minors, it is appropriate to address information to them through their legal guardians. The same is true of adults who may be incapacitated.
- “I sent it in the mail but they must not have gotten it.” – As much as we love to complain about the U.S. postal service, in reality, it’s rare that they lose mail. And, it’s not a coincidence that the one piece of mail that gets lost is always the one to the heir or devisee that no one likes. Don’t use this excuse, be a smart P.R. and use certified mail for any heir or devisee who you know is likely to claim that you aren’t doing your job. While S.C. Code allows for delivery by ordinary mail, most lawyers will always use certified mail in cases where we know we may be asked to prove delivery.
If you’re serving as a P.R. make sure and check out all posts under the category of Personal Representative’s Duties including the following post on completing the estate inventory.