In South Carolina a personal representative is the person or persons appointed by the probate court to manage the estate of someone who has died. The person who fills this role is sometimes referred to as the executor or as the estate administrator. Whether they are referred to as the personal representative or by another title, their job is to ensure that the affairs of the decedent are settled so that the decedent’s estate can be closed. The work that the personal representative must perform during the estate administration process can take up a lot of time and require a lot of work. The good news is that South Carolina law allows a fee to be paid to the personal representative for the work performed. SC Code § 62-3-719. The amount of the compensation is based on the terms of the will, the terms of a contract between the personal representative and the decedent, or the statutory framework.
Will-Based Compensation in South Carolina
When drafting their will, a testator has the option of stating the amount of compensation the personal representative is to be paid. That amount may be a specific lump sum or it may be a percentage of assets in the decedent’s probate estate. While the will states would be controlling over the statutory fee amount, the personal representative has the right to refuse the will-based compensation. To do so, they would have to file a written renunciation of fee with the court. The personal representative would then be entitled to the statutory fee, unless they chose to decline any compensation.
Contract-Based Compensation in South Carolina
In some instances, the decedent and the personal representative executed a contract that memorialized their agreement as to how much the personal representative would be paid for the work of settling the estate. The terms of the contract would be controlling over the statutory fee.
Statute-Based Compensation in South Carolina
The South Carolina Probate Code includes provisions for how much a personal representative is entitled to receive for their work. They are entitled to receive 5% of the value of the personal property of the estate plus the sales proceeds of real property of the probate estate received on sales directed or authorized by will or by proper court order. SC Code § 62-3-719. The minimum amount they would be entitled to receive is $50, regardless of the value of the estate. The maximum amount is 5% of the income earned by the probate estate.
There are, however, exceptions to the minimum and maximum amounts. The court has the discretion to deny fees to the personal representative if they failed to diligently do their job. For example, if the court determines that the personal representative acted unreasonably in the fulfillment of their duties or unreasonably delayed the process, they court will deny payment. SC Code § 62-3-719(b)
On the other hand, if the personal representative performed services well beyond what is typically required of a personal representative, the court may find it reasonable to authorize compensation above the 5% formula. SC Code § 62-3-719(a). While the statute does not define “extraordinary services,” having to deal with the extra work and time involved in litigation during the administration process would likely amount to an extraordinary service, especially if the litigation is protracted. Other examples of extraordinary services may be dealing with complicated tax matters or being required to operate the decedent’s small business.
Multiple Personal Representatives in South Carolina
While typically an estate has only one personal representative, it is not unusual for an estate to have co-personal representatives. Unfortunately, regardless of the number of personal representatives, unless the will states otherwise or unless a contract states otherwise, there is still only one compensation paid. Thus, if 5% of the value of the personal property of the estate plus the sales proceeds of real property is $10,000, then that would be the fee whether there is one personal representative or more than one. If, for example, there are two personal representatives, the court will determine how to apportion the $10,000.