Probate of Real Property

Since a home is often a person’s largest asset, Probate of Real Property (“real estate”) in North Carolina and South Carolina is a necessary component of handling assets and debts in the event of a loved one’s passing. This can be a complex process if the family is located out of state or unfamiliar with how the process works. A professional probate attorney can help families navigate through the legal paperwork and proceedings necessary to transfer titles, settle distribution of property, and satisfy outstanding debts.

Is probate the same in every state?

Probate is the legal process of executing the decedent’s will, verifying their assets, and then ensuring that all assets are appropriately transferred and debts are paid. The rules that govern each state are different, so the property that is subject to probate in one state may not be subject to probate in another state. It is important that people understand the requirements for the specific state that they are dealing with so that they know exactly what forms must be completed and which assets are affected. Probate in NC and SC is carried out in the court system of the county in which the decedent was a permanent resident at the time of death. However, Real Property passes under the laws of the state in which it is located, not the state of domicile of the decedent. Both probate Attorney and Real Estate Auctioneer specializing as a Certified Estate Specialist can make the confusing and often difficult decisions easy to understand.

Probate of Real Property in North Carolina

Unlike South Carolina and many other states, real property in North Carolina does not typically pass through probate. When a decedent dies intestate (without a Will), title to the decedent’s non-survivorship real property is vested in his or heir heirs as of the time of death [G.S. 28A-15-2(b)].  When a decedent dies testate (with a Will), upon probate of the Will, title to the decedent’s non-survivorship real property becomes vested in the devisees of the will. Title relates back to the date of the decedent’s death [G.S. 28A-15-2(b)]. A personal representative cannot pay for upkeep of real property after death, except when authorized by the clerk or by Will. A common mistake many executors make is paying for utilities, cable, internet, mortgages, lawn services, and other expenses out of the Estate account. Since real property vests in the heirs, these expenses are not to be paid out of the probate estate.

Probate of Real Property in South Carolina

In South Carolina, Real Property is a probate asset and passes through a decedent’s estate. A deed of distribution is required for the Executor to transfer title of the real property to the estate beneficiaries. A deed is a technical legal document that should be prepared by an experienced South Carolina probate lawyer. Additionally, unlike North Carolina, South Carolina does not have tenants by the entireties property, where real property owned by a husband and wife automatically passes to the survivor by operation of law. Instead, most property in South Carolina is held as tenants in common. In South Carolina a 50% undivided interest owned by a deceased spouse will pass through probate of the deceased spouse’s estate.

Is a probate attorney necessary?

While some people may choose to take on this task themselves, for more complex estates or for those who are unfamiliar with the system, legal assistance can prove valuable and save them time and money. In addition, since each state has its own requirements and guidelines, navigating the intricacies of the system can become even more challenging if faced with probating an estate with real property in different jurisdictions.