How Do I Collect My Father's Insurance Policy Proceeds After He Died?
Full Question:
Answer:
An insurance policy beneficiary is typically receiving a transfer on death asset, that passes outside the probate process. However, the company may request to see an heirship affidavit or letters testamentary before releasing the funds. If the estate does not exceed ten thousand dollars in SC, it qualifies for a summary procedure using an heirship affidavit to collect the assets of the deseased.
Please see the SC statutes below to determine applicability:
§ 62-3-1201. Collection of personal property by
affidavit.
(a) Thirty days after the death of a decedent, any
person indebted to the decedent or having possession of
tangible personal property or an instrument evidencing a
debt, obligation, stock, or chose in action belonging to the
decedent shall make payment of the indebtedness or deliver
the tangible personal property or the instrument evidencing
the debt, obligation, stock, or chose in action to a person
claiming to be the successor of the decedent upon being
presented an affidavit made by or on behalf of the
successor. Before this affidavit may be presented to collect
the decedent's personal property, it must:
(1) state that the value of the entire probate estate (the
decedent's property passing under the decedent's will plus
the decedent's property passing by intestacy), wherever
located, less liens and encumbrances, does not exceed ten
thousand dollars;
(2) state that thirty days have elapsed since the death of
the decedent;
(3) state that no application or petition for the
appointment of a personal representative is pending or has
been granted in any jurisdiction;
(4) state that the claiming successor is entitled to payment
or delivery of the property;
(5) be approved and countersigned by the probate judge of
the county of the decedent's residence at the time of his
death and only upon the judge's satisfaction that the
successor is entitled to payment or delivery of the
property; and
(6) be filed in the probate court.
(b) A transfer agent of any security shall change the
registered ownership on the books of a corporation from the
decedent to the successor or successors upon the
presentation of an affidavit as provided in subsection (a).
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 50;
1990 Act No. 521, §§ 66, 67.
REPORTER'S COMMENTS
Section 62-3-1201 provides for a simplified handling of
small estates of ten thousand dollars or less through the
use of an affidavit. The small estate affidavit may be used
starting thirty days after the death of the decedent if the
entire estate of the decedent, wherever located, after
deduction of liens and encumbrances, does not exceed ten
thousand dollars. The affiant must state that the value of
the estate does not exceed ten thousand dollars, that thirty
days have elapsed since the decedent's death, that no person
has applied for appointment as, or has been appointed as,
personal representative in any jurisdiction, and that
affiant as successor to decedent is entitled to payment or
delivery of the property.
Upon presentment of such an affidavit, holders of property
of decedent, or persons obligated to decedent, must transfer
the property, or discharge their debt, to the successor.
Stock transfer agents in subparagraph (6) are directed to
transfer stock based on such affidavits.
The small estate affidavit cannot be used to transfer
title to real estate and it cannot be used by creditors of
the estate to reach assets of the estate.
§ 62-3-1203. Small estates; summary administrative
procedure.
(a) If it appears from the inventory and appraisal that
the value of the entire probate estate (the decedent's
property passing under the decedent's will plus the
decedent's property passing by intestacy), less liens and
encumbrances, does not exceed ten thousand dollars and
exempt property, costs and expenses of administration,
reasonable funeral expenses, and reasonable and necessary
medical and hospital expenses of the last illness of the
decedent, the personal representative, after giving notice
to creditors required by Section 62-3-801, but without
giving additional notice to creditors, may immediately
disburse and distribute the estate to the persons entitled
thereto and file a closing statement as provided in
Section 62-3-1204.
(b) If it appears from an appointment proceeding that (1)
the appointed personal representative is either the sole
devisee under the probated will of a testate decedent or the
sole heir of an intestate decedent, or (2) the appointed
personal representatives are the sole devisees under the
probated will of a testate decedent or the sole heirs of an
intestate decedent, the personal representative, after
giving notice to creditors as required by Section 62-3-801,
may immediately disburse and distribute the estate to the
persons entitled thereto and file a closing statement as
provided in Section 62-3-1204.
§ 62-3-301. Informal probate or appointment
proceedings; application; contents.
(a) Applications for informal probate or informal
appointment shall be directed to the court, and verified by
the applicant to be accurate and complete to the best of his
knowledge and belief as to the following information:
(1) Every application for informal probate of a will or for
informal appointment of a personal representative, other
than a special or successor representative, shall contain
the following:
(i) a statement of the interest of the applicant;
(ii) the name, and date of death of the decedent, his age,
and the county and state of his domicile at the time of
death, and the names and addresses of the spouse, children,
heirs (regardless of whether the decedent died intestate and
determined as if the decedent died intestate) and devisees,
and the ages of any who are minors so far as known or
ascertainable with reasonable diligence by the applicant;
(iii) if the decedent was not domiciled in the State at the
time of his death, a statement showing venue;
(iv) a statement identifying and indicating the address of
any personal representative of the decedent appointed in
this State or elsewhere whose appointment has not been
terminated;
(v) a statement indicating whether the applicant has
received a demand for notice, or is aware of a demand for
notice of any probate or appointment proceeding concerning
the decedent that may have been filed in this State or
elsewhere;
(vi) that the time limit for informal probate or appointment
as provided in this article has not expired either because
ten years or less has passed since the decedent's death, or,
if more than ten years from death have passed, circumstances
as described by § 62-3-108 authorizing tardy probate or
appointment have occurred;
(vii) such further information as may be prescribed by the
South Carolina Department of Revenue pursuant to
Sections 12-15-510 and 12-15-540 of the 1976 Code.
(2) An application for informal probate of a will shall
state the following in addition to the statements required
by (1):
(i) that the original of the decedent's last will is in the
possession of the court, or accompanies the application, or
that an authenticated copy of a will probated in another
jurisdiction accompanies the application;
(ii) that the applicant, to the best of his knowledge,
believes the will to have been validly executed;
(iii) that after the exercise of reasonable diligence, the
applicant is unaware of any instrument revoking the will,
and that the applicant believes that the instrument which is
the subject of the application is the decedent's last will.
(3) An application for informal appointment of a personal
representative to administer an estate under a will shall
describe the will by date of execution and state the time
and place of probate or the pending application or petition
for probate. The application for appointment shall adopt the
statements in the application or petition for probate and
state the name, address, and priority for appointment of the
person whose appointment is sought.
(4) An application for informal appointment of an
administrator in intestacy must state the name and address
of the person whose appointment is sought and must state in
addition to the statements required by (1):
(i) that after the exercise of reasonable diligence, the
applicant is unaware of any unrevoked testamentary
instrument relating to property having a situs in this State
under Section § 62-1-301 or a statement why any such
instrument of which he may be aware is not being probated;
(ii) the priority of the person whose appointment is sought
and the names of any other persons having a prior or equal
right to the appointment under Section 62-3-203.
(5) An application for appointment of a personal
representative to succeed a personal representative
appointed under a different testacy status shall refer to
the order in the most recent testacy proceeding, state the
name and address of the person whose appointment is sought
and of the person whose appointment will be terminated if
the application is granted, and describe the priority of the
applicant.
(6) An application for appointment of a personal
representative to succeed a personal representative who has
tendered a resignation as provided in § 62-3-610(c), or
whose appointment has been terminated by death or removal,
shall adopt the statements in the application or petition
which led to the appointment of the person being succeeded
except as specifically changed or corrected, state the name
and address of the person who seeks appointment as
successor, and describe the priority of the applicant.
(b) By verifying an application for informal probate, or
informal appointment, the applicant submits personally to
the jurisdiction of the court in any proceeding for relief
from fraud relating to the application, or for perjury, that
may be instituted against him.
§ 62-3-108. Probate, testacy, and appointment
proceedings; ultimate time limit.
No informal probate or appointment proceeding or formal
testacy or appointment proceeding, other than a proceeding
to probate a will previously probated at the testator's
domicile and appointment proceedings relating to an estate
in which there has been a prior appointment, may be
commenced more than ten years after the decedent's death,
except (1) if a previous proceeding was dismissed because of
doubt about the fact of the decedent's death, appropriate
probate, appointment, or testacy proceedings may be
maintained at any time thereafter upon a finding that the
decedent's death occurred prior to the initiation of the
previous proceeding and the applicant or petitioner has not
delayed unduly in initiating the subsequent proceeding and
if that previous proceeding was commenced within the time
limits of this section; (2) appropriate probate,
appointment, or testacy proceedings may be maintained in
relation to the estate of an absent, disappeared, or missing
person for whose estate a conservator has been appointed, at
any time within three years after the conservator becomes
able to establish the death of the protected person; and (3)
a proceeding to contest an informally probated will and to
secure appointment of the person with legal priority for
appointment in the event the contest is successful may be
commenced within the later of eight months from the informal
probate or one year from the decedent's death. If no
informal probate and no formal testacy proceedings are
commenced within ten years after the decedent's death, and
no proceedings under (2) above are commenced within the
applicable period of three years, it is incontestable that
the decedent left no will and that the decedent's estate
passes by intestate succession. These limitations do not
apply to proceedings to construe probated wills or determine
heirs of an intestate. In cases under (1) or (2) above, the
date on which a testacy or appointment proceeding is
properly commenced is deemed to be the date of the
decedent's death for purposes of other limitations
provisions of this Code which relate to the date of death.