Frequently Asked Questions:
Q-1. I live in Michigan, and my husband died a few years ago. We owned a timeshare week (or other real estate) together in Hilton Head. Don't I own it automatically as a result of his death?
Not necessarily. South Carolina law does not provide for automatic survivorship rights between spouses, as is the case in many states. The deed must be examined for the necessary survivorship language.
Q-2. Our deed contains survivorship language. Is probate still required?
No. However, a filing must be made with the Register of Deeds in the appropriate County to document your spouse's death. In addition, if your spouse died before January 1, 2005, filings may be required with the South Carolina Department of Revenue.
Q-3. There is no survivorship language in our deed. My husband had no "estate", because everything in Michigan was owned by both of us with survivorship rights. What is probate, and why is it necessary in South Carolina if it was not necessary in Michigan?
Probate is a legal process which transfers title to assets from a deceased individual to his or her beneficiaries, if there is a Will, or to his or her heirs, if there is no Will. Personal property, like cars, stocks, bank accounts and so forth are governed by the law of the person's domicile (in this case, Michigan). Real estate, on the other hand, is governed by the laws of the State in which it is located (South Carolina).
Q-4. I am selling my timeshare, and the sales company says I need to probate my wife's estate to get her name off the deed/title. How long will this take?
It depends. If your wife's estate is still "open" in another State, it is possible to obtain filings from the home Court which can then be filed in South Carolina to evidence the authority of the personal representative (also known as an "executor") to act. In such a case, with overnight delivery, it is possible that this title issue could be resolved in a matter of days. If there is no open estate, but there is a Will, with prompt responses from the personal representative, real estate can often be transferred from an estate within 2-3 weeks. More typically, though, 30-60 days is a better estimate if there is no risk of losing a buyer as a result of delay. Unusual circumstances can of course delay the process, and all required estate filings may not necessarily be completed by the time the property can be transferred.
Please note that our timeshare title department can assist you with timeshare closings. Please visit www.timesharetitlesouthcarolina.com, for information in that regard.
Q-5. My husband had a Living Trust when he died. Why does his timeshare have to go through probate?
If a real estate interest is not deeded into a trust while the owner is alive, the trust does not control the distribution of that property. Generally, there is a Will which directs property titled outside of the trust at death to the trust. The probate process is necessary to accomplish that.
Q-6. What do you need to see to determine what process is necessary to clear title to South Carolina real estate when an out of state owner has died?
Generally, it is necessary to see the deed to the property, a certified copy of the death certificate and a copy of the person's Will and Trust, if there is a Trust. If the death occurred before January 1, 2005, it is necessary to review a summary of the value of the individual's estate, broken down into South Carolina assets, and non-South Carolina assets. Assets are identified and valued in the same manner used for determining an individual's gross estate for federal estate tax purposes. For example, if Tom owned a $10,000 timeshare week in Hilton Head with his wife Sue (with or without survivorship rights), $500,000 of assets in New York jointly with Sue and a $50,000 boat in his name alone in New York, his South Carolina assets would be valued at $5,000 and New York assets at $300,000.
Q-7. How much will this cost?
You will be given a fee quote once our attorneys have reviewed your particular circumstances. A variety of procedures is available, and we always find the most economical approach to meet your needs. Generally speaking, a property held with survivorship rights, with a death after January 1, 2005, will require attorney's fees of $200 plus recording fees of $10. Processing an estate when a personal representative or executor is appointed in another jurisdiction will require, in many cases, about 3 to 3.5 hours of attorney time, currently billed at $250 per hour. A full ancillary probate, where the personal representative is appointed in South Carolina, will generally require a minimum of 5.5 hours of attorney time. Court filing fees will differ based upon the procedure used, and preparation of a South Carolina Estate Tax Return, if necessary, will generally require about one hour of additional attorney time if a complete copy of the Federal Estate Tax Return filed for the estate is provided to us. No fees are incurred for paralegal time or copies. PLEASE UNDERSTAND THAT THESE ARE ESTIMATES ONLY, AND YOUR ACTUAL FEES MAY DIFFER BASED UPON THE ATTORNEY TIME ACTUALLY EXPENDED. We will provide you with a more accurate estimate upon review of your specific details, which will assume prompt cooperation of all necessary parties and provision of all requested documentation.