Detailed Answer
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance specific to your situation.
Under South Carolina law, the Probate Court appoints an administrator for an intestate estate according to a strict priority list. See SC Code Ann. § 62-3-402 (Order of Priority). A higher-priority heir (for example, a surviving spouse or eldest child) typically has first right to serve. If a lower-priority person (the “client”) seeks appointment despite a living, willing higher-priority heir, the client must show why the higher-priority heir cannot or should not serve.
Common grounds include:
- Incapacity or unavailability: The heir is legally incapacitated, out of state permanently, or unreachable. SC Code Ann. § 62-3-404 (Failure to Qualify) presumes refusal if an appointee fails to qualify within 30 days.
- Conflict of interest: The heir has a substantial conflict, such as serving in an executor role for another related estate.
- Misconduct or unfitness: Prior criminal convictions involving dishonesty, a history of financial mismanagement, or evidence of willful neglect may justify bypassing priority. SC Code Ann. § 62-3-401 (Who May Serve) requires the court to appoint a person of good character.
To proceed, the client files a petition in the county where the decedent resided. The petition should:
- List all heirs entitled under SC Code Ann. § 62-2-102 (Order of Intestate Succession).
- Identify the higher-priority heir and state reasons they cannot serve.
- Attach evidence (medical records, affidavits, or criminal records) supporting incapacity or unfitness.
The court will schedule a hearing. At the hearing, the client presents testimony and documents. The higher-priority heir may contest. The judge must find clear proof of incapacity, unavailability, conflict, or unfitness before appointing the client instead. If successful, the court will issue Letters of Administration in the client’s name.
Helpful Hints
- Start early: Probate deadlines vary by county; timely petitions avoid delays.
- Gather strong evidence: Medical or professional affidavits carry weight in court.
- Consider waivers: A higher-priority heir can sign a voluntary waiver to streamline appointment.
- Consult local rules: Each Probate Court has procedural nuances; review county court guidelines.
- Seek legal counsel: An attorney can prepare and present a persuasive petition and handle any contests.