Inheritance of Real Property through Unprobated Estates
- August 2, 2010
- David Greene
- Comments Off on Inheritance of Real Property through Unprobated Estates
The only way for real property to pass with clear title to a devisee or heir is for each prior owner to have gone through the probate process in the county in which the property is located, for at least for 60 years back. If the land does not pass by virtue of being probated, there is a cloud on the title. Clear title means that there is a definite chain of title coming down to you for at least the past 60 years. If the decedent did not sign a title, or deed, to the heir, then the only way to pass the property to the heir is through probate. For example, if great grandfather dies and “leaves” the land to grandfather but a probate estate is not opened and then grandfather dies and “leaves” the land to father without probate, Father does not have clear title to pass to his son. He does not have clear title because, pursuant to South Carolina law, when a person dies owning real property, a formal probate must be conducted and the title is passed through the estate and a deed of distribution is recorded of public record. An estate in which the decedent died more than 10 years earlier cannot be probated; therefore, a Determination of Heirs action must be instituted to properly pass title to all known heirs of the deceased. The order or orders of the Court will act as a deed from one heir to the other to pass clear title to the current heir.