Could a South Carolina probate court charge a separate $150 filing fee for every petition in an estate?

Plain-English summary

Lee County's attorney asked whether a probate judge could add a $150 filing fee to the estate fee for every petition filed in an estate. The Attorney General concluded in 2005 that opening an estate incurred the fee based on the estate's gross value under Section 8-21-770(B). If there was no litigation or other petition, that was the only fee described by the opinion.

The AG distinguished the initial estate proceeding from a later claim, will contest, or other action. Subsection (11) applied to the initial petition in an action or proceeding other than the estate or conservatorship matter covered by subsection (B). He said an additional filing fee was authorized for each such occurrence. The opinion did not support charging that separate fee automatically merely because the estate was opened.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did opening an estate itself trigger both fees?
No. The AG treated the value-based estate fee as the fee for the initial application or petition.

Could a separate creditor claim or will contest trigger another filing fee?
Yes. The opinion said the other-action fee applied when a separate claim, litigation matter, or petition was filed.

Was every estate charged the same base fee?
No. The opinion quoted a schedule based on the gross value of the probate estate.

Background and statutory framework

The AG read subsections (A), (B), and (11) of Section 8-21-770 together. The estate-value schedule governed ordinary estate opening, while subsection (11) addressed an initial petition in another action or proceeding.

Citations and references

• Section 8-21-770: estate-value fee and separate-action filing fee provisions.

Official title

Questioning the authority of a probate judge in your county charging a $150.00 filing fee pursuant to S.C. Code Ann. § 8-21-770(11) for all petitions filed in estates in addition to the estate fee.

Requester

Paul M. Fata, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-14-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05oct14fata.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATTO RNEY GENERAL

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October 14, 2005

Pau] M. Fata, Esquire
Lee County Attorney
Post Office Drawer 568
BishopvilJe, South Carolina 29010
Dear Mr. Fata:
In a letter to this office you indicated that the probate judge in your county charges a $150.00 filing fee pursuant to S.C. Code Ann. § 8-21-770( 11) for all petitions filed in estates in addition to the estate fee. You have questioned the authority for such fee. Section 8-21-770 states as follows:

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(A) Fees and costs are payable upon the filing of an application or petition. Payment may, in the discretion of the probate judge, be deferred for a period no greater than the time provided by law for filing the inventory and appraisement. Any adjustment of fees and costs collected at the opening of the estate must be effected before or at the time of final settlement. (B) In estate and conservatorship proceedings, the fee shall be based upon the gross value of the decedent's probate estate or the protected person's estate as shown on the inventory and appraisement as follows:

(1) Property valuation less than $5,000.00
25.00
(2) Property valuation of $5,000.00 but less than $20,000.00
$45.00
(3) Property valuation of $20,000.00 but Jess than $60,000.00
$67.50
(4) Property valuation of $60,000.00 but less than $100,000.00
$95.00
(5) Property valuation of $ 100,000.00 but Jess than $600,000.00
$95.00
plus. J 5 percent of the property valuation between $100,000.00 and $600,000.00

Mr. Fata
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October 14, 2005

(6) Property valuation of $600,000.00 or higher amount set forth in (5) above plus one-fourth of one percent of the property valuation above $600,000.00. For purposes of this subsection, "decedent's probate estate" means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy and "protected person's estate" means the protected person's property that vests in a conservator as trustee pursuant to Section 62-5-420.

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Subsection (11) of Section 8-21-770 provides that "[ f]iling the initial petition in any action or proceeding other than (B) above, same fee as charged for filing civil actions in circuit court." It is my understanding that the fees set forth by subsection (B) are charged as part of the initial application or petition process. Such is consistent with the statement in subsections (A) and (B) that "[f]ees and costs are payable upon the filing of an application or petition.. .ln estate and conservatorship proceedings, the fee ... (i.e. the fee referenced in subsection (A)) ... shall be based upon the gross value ofthe... estate... (as provided in such provision)." (emphasis added). If there is no litigation or other petitions filed, no other fees would be charged. Therefore, the only fee charged in such instance would be based upon the value of the estate. However, whenever there are claims, litigation or other actions against the estate, such as where a creditor would file a claim or the will is contested, another fee is authorized. Such fee is provided by subsection (11) which, again, states that"[ f]iling the initial petition in any action or proceeding other than (B) above, same fee as charged for filing civil actions in circuit court." (emphasis added). Such fee would be charged for each occurrence when a petition is filed.

With kind regards, I am,
Sincerely,

dc{JC/I/Ill~
Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

Assistant Deputy Attorney General