Wednesday, November 23, 2005

S.C. Court of Appeals issues reverses trial court's dismissal of claim in probate court

In the case of In re Burch, defendant moved the circuit court to dismiss Gordon's action against the estate of George Burch for failure to present his claim within the proper time and on the proper form. Defendant argued that because Gordon did not file South Carolina Probate Court Form 371 before the claim period expired,Gordon did not properly present his claim against the estate, and his claim was barred. The court ruled as follows:

Form 371 may be necessary when the claimant intends to submit a claim to the personal representative but does not intend to commence an action against the personal representative--for example, when the claimant expects the personal representative to allow the claim. Form 371 may also be necessary when the claimant intends to commence a proceeding against the personal representative in a court other than probate court. In that case, Form 371 would put the probate court on notice of the proceeding, which would insure that the estate is not distributed before the claim is handled. In this case, however, the complaint accomplishes precisely what Form 371 is intended to accomplish. Therefore, the trial court erred when it held the requirements of section 62-3-804(2) can be satisfied only by filing Form 371 with the probate court.

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