How Long Does a Person Have to Contest a Will in South Carolina?
Full Question:
Answer:
A proceeding to contest an informally probated will and appointment if the contest is successful, may be commenced within the later of twelve months from informal probate or three years from decedent's death. These limitations do not apply to proceedings to construe wills or to determine heirs of an intestate.
We suggest contacting the local clerk of courts at the probate court where he died to inquire about timeframes, as they will vary depending on the caseload of each judge.
Please see the following SC statutes:
§ 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.
§ 62-3-802. Statutes of limitations.
(a) Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid.
(b) The running of any statute of limitations measured from some other event than death or the giving of notice to creditors is suspended during the eight months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow.
(c) For purposes of any statute of limitations, the proper presentation of a claim under Section 62-3-804 is equivalent to commencement of a proceeding on the claim.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 32; 1990 Act No. 521, § 52.
REPORTER'S COMMENTS
This section provides for waiver of and the suspension of the running of any statute of limitations, measured from some event other than death and advertisement for claims, during the four months following the decedent's death, resuming thereafter.
§ 62-3-803. Limitations on presentation of claims.
(a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:
(1) one year after the decedent's death; or
(2) within the time provided by Section 62-3-801(b) for creditors who are given actual notice, and within the time provided in Section 62-3-801(a) for all creditors barred by publication; provided, claims barred by the nonclaim statute at the decedent's domicile before the giving of notice to creditors barred in this State are also barred in this State.
(b) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) a claim based on a contract with the personal representative within eight months after performance by the personal representative is due;
(2) any other claim, within the later of eight months after it arises, or the time specified in subsection (a)(1).
(c) Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge, lien, or other security interest upon property of the estate; or
(2) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance; or
(3) collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.