Probate is the legal process of proving the\nvalidity of a testator\u2019s will and settling his or her estate after death,\nincluding distributing property to those entitled to receive it. The procedures\nfor probate are codified at title 62 of the South Carolina Code of Laws (South\nCarolina Probate Code).<\/p>\n\n\n\n\n\n\n\n
Property titled in the decedent\u2019s name\nindividually or in co-ownership without a survivorship or beneficiary designation\nbecomes part of the estate, subject to administration by the probate court. The\nprobate court in the county where the decedent maintained permanent residence at\nthe time of death oversees the administration of the estate. <\/p>\n\n\n\n
In South Carolina, title to a decedent\u2019s\nreal property devolves at death to his or her heirs (intestate estates) and\ndevisees (testate estates) (S.C. Code 62-3-101). Any part of the probate estate\nnot disposed of by will is distributed according to South Carolina\u2019s laws of\nintestate succession, codified at S.C. Code 62-2-101.<\/p>\n\n\n\n
Regardless of the testacy status of the\ndecedent, probate is necessary to legally transfer title to the decedent\u2019s\nproperty. The probate court in the county where the decedent was domiciled at\nthe time of death has jurisdiction over the estate. To effect a transfer of\ntitle by a will (a devise), the will must first be delivered to the court and\ndetermined valid by court order (62-2-901, 62-3-102).<\/p>\n\n\n\n
An application (Form 300ES) to the court\nis necessary to initiate either informal or formal probate proceedings, and should\nindicate whether such petition is for probate of a will (testate) or\nappointment to the estate (intestate). Most probate cases are informal, with\nthe court issuing an order of informal probate following application. Formal\nprobate cases involve more court supervision and may be appropriate when\nbeneficiaries and personal representatives do not agree on estate matters.<\/p>\n\n\n\n
Probate is also necessary to appoint a\npersonal representative. A personal representative (PR) is the fiduciary entrusted\nto settle the decedent\u2019s estate. When named in a will, this person is called an\nexecutor. When a decedent dies intestate or when the executor is unwilling or\nunable to serve, this person, selected by the court, is called an\nadministrator.<\/p>\n\n\n\n
Administration of an estate begins when\nthe court issues letters (62-3-103). Priority of appointment as personal\nrepresentative goes to the person named in the decedent\u2019s will, then to any\nalternate named person, and proceeds in the order established at S. C. Code 62-3-203.\nLetters (testamentary, for executors; of administration, for administrators)\nevidence the PR\u2019s authorization to act as the estate\u2019s fiduciary. A copy,\nsometimes called a short certificate, is given to the PR to present as proof of\nauthority.<\/p>\n\n\n\n
The PR must comply with the procedures\noutlined in the Probate Code, including giving notice to creditors following\nappointment; filing inventory and appraisement of the estate within 90 days of\nappointment; hearing claims on the estate; and filing accounting, proposal for\ndistribution, and settlement of the estate (62-3-704).<\/p>\n\n\n\n
Once qualified, the PR \u201chas the same\npower over the title to property of the estate that an absolute owner would\nhave, in trust however, for the benefit of the creditors and others interested\nin the estate\u201d (62-3-711(a)). The devolution of title to real property by\nprocess of law to the decedent\u2019s heirs and devisees is subject to the PR\u2019s\npower to take possession as may be necessary for the satisfaction of claims or\npurposes of administration. Note that unless empowered by a decedent\u2019s will, a\nPR may not sell property from the estate without the court\u2019s authorization (62-3-711(b)).\n<\/p>\n\n\n\n
The procedures for selling real property\nin probate are outlined at 62-3-1301 et seq., and are \u201cthe only procedure for\nthe sale of lands by the court, except where the will of the decedent\nauthorizes to the contrary\u201d (62-3-1301). Any interested person may submit a\npetition for the sale of real property (Form 430ES). An \u201cinterested person\u201d\nincludes \u201cheirs, devisees, children, spouses, creditors, beneficiaries, and any\nothers having a property right in or claim against\u2026the estate of a decedent\u201d (62-1-201(23)).\nOnce the petition is filed, a lis pendens, or notice of pending action, must be\nfiled in the office of the clerk of the circuit court (15-11-10, 62-3-1308). An\nestate inventory and appraisement [Form 350ES] must be filed in the probate\ncourt prior to consideration for approval of a sale.<\/p>\n\n\n\n
The court then issues a summons, along\nwith a copy of the petition, to the PR (if not the petitioner), heirs of the\ndecedent (when the decedent dies intestate), devisees under the decedent\u2019s will\n(when the decedent dies testate), and any person who has properly presented a\nclaim against the estate which remains unresolved (62-3-1303). <\/p>\n\n\n\n
After the time for answer has lapsed (30\ndays), the court convenes a hearing on the petition. Following the hearing, the\ncourt may enter an order for sale of the property by the PR (private sale), or\nsell the property after three weeks\u2019 time following publishing of notice, with\nproceeds from the sale handed over to the PR (public sale). The hearing may be\nwaived by filing answers from all interested parties consenting to the sale and\nwaiving the hearing, along with notarized affidavit of appraiser\/realtor, the summons,\npetition, filing fee, and proposed order [1]. <\/p>\n\n\n\n
To transfer title following a sale, the\nPR executes a deed. A personal representative\u2019s deed follows the statutory form\nof conveyances in South Carolina, under S.C. Code 27-7-10, and must meet all\nstate and local standards for documents affecting real property. When recorded,\nthe deed transfers an estate in fee simple to the grantee with full warranties\nof title. Purchasers dealing with PRs are protected under 62-3-714, provided\nthe estate is not administered under Part 5 of the Probate Code (estates in mediation;\nsee 62-3-501 et seq.). Buyers may request a short certificate from the PR to\ndetermine whether the estate is under Part 5 administration. <\/p>\n\n\n\n
A purchaser receiving a deed from a PR\nwho has been devised real property or instructed to sell real property \u201ctakes\ntitle to the real property free of rights of any heirs or devisees or other\ninterested person in the estate and incurs no personal liability to the estate\nor to any heir or devisee or other interested person in the estate\u201d regardless\nof whether such sale was proper (62-3-910(B)).<\/p>\n\n\n\n
The deed must be signed by the acting PR\nin the presence of a notary public and two witnesses (27-7-10). Record in the\nRegister of Deeds\u2019 office in the county where the subject property is situated.\nFollowing the sale, a copy of deed must be filed with the probate court, along\nwith the PR\u2019s final accounting of funds distributed.<\/p>\n\n\n\n
The PR may need to decide whether to\nsell real property in probate or deed it to distributees, taking into\nconsideration such factors as the family\u2019s desire to handle the sale outside of\ncourt; whether all distributees agree on a sale; and convenience factors, such\nas the number of distributees and whether the number will complicate the\nexecution of future deeds [2].<\/p>\n\n\n\n
After receipt of an order approving\nfinal distribution, the PR may distribute assets pursuant to 62-3-906, 907. To\ndistribute real property, the PR executes a deed of distribution (Form 400ES).\nA deed of distribution pursuant to 62-3-907, 62-3-908 is \u201cconclusive evidence\nthat the distributee has succeeded to the interest of the estate\u2026against all\npersons interested in the estate\u201d (62-3-908). A deed of distribution is not a\nwarranty deed; rather, because title devolves by process of law, the deed\nsimply releases the PR\u2019s powers over the subject property. <\/p>\n\n\n\n
Apart from meeting all state and local\nstandards for documents affecting title to real property, the deed of\ndistribution must identify the reason for the transfer (i.e., a will, laws of\nintestacy, a family agreement, disclaimer, or order), and name each beneficiary\nand the percent of the decedent\u2019s interest in the subject property he or she is\ninheriting. When two or more heirs or devisees are entitled to undivided\ninterests, the PR or interest heir or devisee may petition the court for\npartition under 62-3-911.<\/p>\n\n\n\n
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\u2019 office of the county where the subject property is situated. A certified copy should be delivered to the probate court.<\/p>\n\n\n\n
Related South Carolina Real Estate Probate Documents:<\/p>\n\n\n\n
The information provided here is not a\nsubstitute for legal advice. Consult an attorney licensed in the State of South\nCarolina with questions regarding personal representative\u2019s deeds and probate\nprocedures in that state, as each situation is unique.<\/p>\n\n\n\n