[SC] Does my brother’s estate have to go through probate if he died without a will? My husband and I also need help with our will.

SC Estate Probate

Dan

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For You and Your Husband (NJ Planning)

For a married couple with a home and small business, the typical estate plan includes:

A Last Will & Testament (one for each of you)
- Name each other as primary executor
- Name an alternate executor
- Leave everything to each other
- Name final beneficiaries
- Include a residuary clause
- Address what happens to the business
Durable Power of Attorney (POA)
- Allows your spouse to handle finances if incapacitated.
Advance Directive / Living Will
- Medical decision-making authority.
HIPAA Authorization
- Medical information access.

These documents are often more critical during life than the will.

Condo - If owned jointly with right of survivorship, it passes automatically to the survivor. If solely owned, it passes through probate. (NJ Rev Stat § 46:3-17)

Small Business

If sole proprietorship → becomes part of estate. (NJ Rev Stat § 3B:3-23)
If LLC → succession depends on operating agreement. (NJ Rev Stat § 42:2C-48)

Cost in New Jersey - A simple husband-and-wife package (2 wills, 2 POAs, 2 directives) usually runs $500–$1,200.

-------------------------

Probate for your brother (SC Resident)

Yes, probate is required in South Carolina because:

He died without a will (intestate). (SC Code § 62-2-101)
Insurance checks are payable to “Estate of ___.”
He owned a home with a mortgage.
He owned a vehicle with a loan.
He owned an LLC taxed as an S-Corp.
You cannot legally open an estate account or deposit checks without court-issued Letters of Administration.

Why Probate Is Required in SC

Real estate cannot transfer without probate.
DMV will not transfer a vehicle with lien without a Personal Representative (PR).
No one can act for the LLC without PR appointment.
Estate checks cannot be deposited without estate account.
Estate account requires EIN.
EIN requires probate appointment.

Distribution Under SC Intestacy

Since he died with:

A spouse; More than one child

Under SC law:

Wife gets 50%; Five children share the other 50% (SC Code § 62-2-102), (SC Code § 62-2-103)

This happens after debts and expenses are paid.

Process

File Application for Appointment of Personal Representative (Intestate).
Court issues Letters of Administration.
Apply for EIN.
Open estate bank account.
Deposit insurance checks.
Pay debts and reimburse family members (allowed with receipts).
Distribute remaining estate per SC law.

New Jersey Last Will and Testament

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Ok — so I tried to do my own will. It's just my husband and I. We currently have a condo that we live in that is paid off. And I have a very small business. I work part time but my husband is retired and collects a pension. I know we need some kind of will. Any suggestions?

My brother died without a will. He leaves behind a wife and 5 grown kids. They have a home which they are still paying for. He has a business in his name — they file a 1120-S. It's an LLC. He leaves behind a car they are still paying for. Also, because he had insurance with the cruise ship, they are sending checks to the family payable to the order of his estate. Do we need to go to probate for this? Can we just open a bank account with a new tax ID # to make the deposits and reimburse family members that paid money to get him back to the states? My brother is an SC resident.

Lexi, Chatbot

I'm so sorry to hear about your brother's passing; that must be incredibly difficult for you. Have you already started the process of settling your brother's estate? Are you and your husband currently residing in the same state where your brother lived?

No - my brother lived in SC.

Dan

Hey there! I'm Benjamin, an attorney with many years of experience, and I'm here to help you.

Just so you are aware, this platform provides legal information only. No attorney-client relationship is formed from our conversation. I understand you're dealing with probate issues related to your brother's estate in South Carolina. Is that correct?

Do you also have a question about your will and whether you should retain counsel?

All correct. Are you licensed in NJ or SC?

Dan

Nope — AL, NC, and DC.

Does it really matter that I am asking questions regarding SC and NJ and you are licensed in other states?

Dan

I am not providing you legal advice, just general legal information. Please give me a moment and I will type your response.

Dan

For You and Your Husband (NJ Planning)

For a married couple with a home and small business, the typical estate plan includes:

A Last Will & Testament (one for each of you)
- Name each other as primary executor
- Name an alternate executor
- Leave everything to each other
- Name final beneficiaries
- Include a residuary clause
- Address what happens to the business
Durable Power of Attorney (POA)
- Allows your spouse to handle finances if incapacitated.
Advance Directive / Living Will
- Medical decision-making authority.
HIPAA Authorization
- Medical information access.

These documents are often more critical during life than the will.

Condo - If owned jointly with right of survivorship, it passes automatically to the survivor. If solely owned, it passes through probate. (NJ Rev Stat § 46:3-17)

Small Business

If sole proprietorship → becomes part of estate. (NJ Rev Stat § 3B:3-23)
If LLC → succession depends on operating agreement. (NJ Rev Stat § 42:2C-48)

Cost in New Jersey - A simple husband-and-wife package (2 wills, 2 POAs, 2 directives) usually runs $500–$1,200.

-------------------------

Probate for your brother (SC Resident)

Yes, probate is required in South Carolina because:

He died without a will (intestate). (SC Code § 62-2-101)
Insurance checks are payable to “Estate of ___.”
He owned a home with a mortgage.
He owned a vehicle with a loan.
He owned an LLC taxed as an S-Corp.
You cannot legally open an estate account or deposit checks without court-issued Letters of Administration.

Why Probate Is Required in SC

Real estate cannot transfer without probate.
DMV will not transfer a vehicle with lien without a Personal Representative (PR).
No one can act for the LLC without PR appointment.
Estate checks cannot be deposited without estate account.
Estate account requires EIN.
EIN requires probate appointment.

Distribution Under SC Intestacy

Since he died with:

A spouse; More than one child

Under SC law:

Wife gets 50%; Five children share the other 50% (SC Code § 62-2-102), (SC Code § 62-2-103)

This happens after debts and expenses are paid.

Process

File Application for Appointment of Personal Representative (Intestate).
Court issues Letters of Administration.
Apply for EIN.
Open estate bank account.
Deposit insurance checks.
Pay debts and reimburse family members (allowed with receipts).
Distribute remaining estate per SC law.

Wow so does this mean that the living wife is in danger of losing the house and the car? So we can transfer the business to the wife? The PR can transfer the business to the wife? So the business would file a final return as of date of death then reopen under a new name after the transfer?

Dan

She can stay in the home.
She has first priority to be Personal Representative.
She controls the estate process.
She receives at least 50% of the estate.
The house can be assigned to her through agreement or offsets.

The business is part of the estate, and its value is split among the six heirs (wife + 5 children).

As for tax handling (final return and reopening), that is best addressed by the accountant.

Ok great! I think this is enough for us to go with. Thanks for your help in all matters.

Dan

Did that solve your issue? Please let me know if you have further questions. I believe I have addressed your inquiry, so I will mark it complete. If you have a new question, please submit separately. Thank you and have a wonderful day!

You too! Thanks again!

Dan

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