Probate is the legal process of proving the validity of a testator’s will and settling his or her estate after death, including distributing property to those entitled to receive it. The procedures for probate are codified at title 62 of the South Carolina Code of Laws (South Carolina Probate Code).
Property titled in the decedent’s name individually or in co-ownership without a survivorship or beneficiary designation becomes part of the estate, subject to administration by the probate court. The probate court in the county where the decedent maintained permanent residence at the time of death oversees the administration of the estate.
In South Carolina, title to a decedent’s real property devolves at death to his or her heirs (intestate estates) and devisees (testate estates) (S.C. Code 62-3-101). Any part of the probate estate not disposed of by will is distributed according to South Carolina’s laws of intestate succession, codified at S.C. Code 62-2-101.
Regardless of the testacy status of the decedent, probate is necessary to legally transfer title to the decedent’s property. The probate court in the county where the decedent was domiciled at the time of death has jurisdiction over the estate. To effect a transfer of title by a will (a devise), the will must first be delivered to the court and determined valid by court order (62-2-901, 62-3-102).
An application (Form 300ES) to the court is necessary to initiate either informal or formal probate proceedings, and should indicate whether such petition is for probate of a will (testate) or appointment to the estate (intestate). Most probate cases are informal, with the court issuing an order of informal probate following application. Formal probate cases involve more court supervision and may be appropriate when beneficiaries and personal representatives do not agree on estate matters.
Probate is also necessary to appoint a personal representative. A personal representative (PR) is the fiduciary entrusted to settle the decedent’s estate. When named in a will, this person is called an executor. When a decedent dies intestate or when the executor is unwilling or unable to serve, this person, selected by the court, is called an administrator.
Administration of an estate begins when the court issues letters (62-3-103). Priority of appointment as personal representative goes to the person named in the decedent’s will, then to any alternate named person, and proceeds in the order established at S. C. Code 62-3-203. Letters (testamentary, for executors; of administration, for administrators) evidence the PR’s authorization to act as the estate’s fiduciary. A copy, sometimes called a short certificate, is given to the PR to present as proof of authority.
The PR must comply with the procedures outlined in the Probate Code, including giving notice to creditors following appointment; filing inventory and appraisement of the estate within 90 days of appointment; hearing claims on the estate; and filing accounting, proposal for distribution, and settlement of the estate (62-3-704).
Once qualified, the PR “has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate” (62-3-711(a)). The devolution of title to real property by process of law to the decedent’s heirs and devisees is subject to the PR’s power to take possession as may be necessary for the satisfaction of claims or purposes of administration. Note that unless empowered by a decedent’s will, a PR may not sell property from the estate without the court’s authorization (62-3-711(b)).
The procedures for selling real property in probate are outlined at 62-3-1301 et seq., and are “the only procedure for the sale of lands by the court, except where the will of the decedent authorizes to the contrary” (62-3-1301). Any interested person may submit a petition for the sale of real property (Form 430ES). An “interested person” includes “heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against…the estate of a decedent” (62-1-201(23)). Once the petition is filed, a lis pendens, or notice of pending action, must be filed in the office of the clerk of the circuit court (15-11-10, 62-3-1308). An estate inventory and appraisement [Form 350ES] must be filed in the probate court prior to consideration for approval of a sale.
The court then issues a summons, along with a copy of the petition, to the PR (if not the petitioner), heirs of the decedent (when the decedent dies intestate), devisees under the decedent’s will (when the decedent dies testate), and any person who has properly presented a claim against the estate which remains unresolved (62-3-1303).
After the time for answer has lapsed (30 days), the court convenes a hearing on the petition. Following the hearing, the court may enter an order for sale of the property by the PR (private sale), or sell the property after three weeks’ time following publishing of notice, with proceeds from the sale handed over to the PR (public sale). The hearing may be waived by filing answers from all interested parties consenting to the sale and waiving the hearing, along with notarized affidavit of appraiser/realtor, the summons, petition, filing fee, and proposed order .
To transfer title following a sale, the PR executes a deed. A personal representative’s deed follows the statutory form of conveyances in South Carolina, under S.C. Code 27-7-10, and must meet all state and local standards for documents affecting real property. When recorded, the deed transfers an estate in fee simple to the grantee with full warranties of title. Purchasers dealing with PRs are protected under 62-3-714, provided the estate is not administered under Part 5 of the Probate Code (estates in mediation; see 62-3-501 et seq.). Buyers may request a short certificate from the PR to determine whether the estate is under Part 5 administration.
A purchaser receiving a deed from a PR who has been devised real property or instructed to sell real property “takes title to the real property free of rights of any heirs or devisees or other interested person in the estate and incurs no personal liability to the estate or to any heir or devisee or other interested person in the estate” regardless of whether such sale was proper (62-3-910(B)).
The deed must be signed by the acting PR in the presence of a notary public and two witnesses (27-7-10). Record in the Register of Deeds’ office in the county where the subject property is situated. Following the sale, a copy of deed must be filed with the probate court, along with the PR’s final accounting of funds distributed.
The PR may need to decide whether to sell real property in probate or deed it to distributees, taking into consideration such factors as the family’s desire to handle the sale outside of court; whether all distributees agree on a sale; and convenience factors, such as the number of distributees and whether the number will complicate the execution of future deeds .
After receipt of an order approving final distribution, the PR may distribute assets pursuant to 62-3-906, 907. To distribute real property, the PR executes a deed of distribution (Form 400ES). A deed of distribution pursuant to 62-3-907, 62-3-908 is “conclusive evidence that the distributee has succeeded to the interest of the estate…against all persons interested in the estate” (62-3-908). A deed of distribution is not a warranty deed; rather, because title devolves by process of law, the deed simply releases the PR’s powers over the subject property.
Apart from meeting all state and local standards for documents affecting title to real property, the deed of distribution must identify the reason for the transfer (i.e., a will, laws of intestacy, a family agreement, disclaimer, or order), and name each beneficiary and the percent of the decedent’s interest in the subject property he or she is inheriting. When two or more heirs or devisees are entitled to undivided interests, the PR or interest heir or devisee may petition the court for partition under 62-3-911.
As with a PR deed, the deed of distribution is signed by the acting PR in the presence of a notary public and two witnesses before recording in the Register of Deeds’ office of the county where the subject property is situated. A certified copy should be delivered to the probate court.
Related South Carolina Real Estate Probate Documents:
The information provided here is not a substitute for legal advice. Consult an attorney licensed in the State of South Carolina with questions regarding personal representative’s deeds and probate procedures in that state, as each situation is unique.