The Center offers the legal services of drafting wills and "clearing" title to land. "Clearing" title means having the name of the deceased person removed from the deed of the property by legal measure and replaced with the names of the identified heirs of that deceased person. There are three ways to have title to your family's property "cleared"-- probate the estate, quiet title action and determination of heirs. Descriptions of these legal services are described below.
Drafting of Wills
We have all heard the saying, "Where there is a will, there is a way!" That saying is true when it comes to creating a plan for handling your property after your death. By drafting a Last Will and Testament before your death, you leave a plan for your family to follow to ensure that your property or belongings are given to the desired person(s).
You should have a Will for yourself! Even if you have heirs' property, you can leave that interest to whomever you want. Many people think that you have to leave your property to all of your children equally, this is not true! You can leave your property to anyone you want, except that your spouse has to get at least 1/3 of your property. And that applies to Common Law spouses as well!
All Wills must be in writing! Oral Wills are not accepted by the State of South Carolina! All Wills must be signed and witnessed by two people who are not included in the Will and it should be notarized.
Probate the Estate
If the person (ancestor) whose name is on the deed has not been deceased for 10 years, it is possible to probate the estate. The division of property will result in a deed of distribution being recorded in the RMC office at the close of the probate process. The deed will show who has an interest in the land. Family members can also transfer their interest to other family members by quit claim deed if they want a specific family member to have their interests.
Determination of Heirs
If your ancestor has been deceased for more than 10 years, you can petition the Probate Court in your county to make a Determination of Heirs. The Judge will listen to testimony about your family tree and determine who your ancestor's heirs are according to the intestacy laws of South Carolina and issue a Final Order that transfers the property to the living heirs. You can only do this if you actually knew the ancestor during his/her lifetime. For example, you probably know both of your parents, but may never have met your great-grandfather.
Quiet Title Action
Family members can file a lawsuit in Civil Court asking the Judge to make a determination as to the rightful owners of the property. This is called a Quiet Title Action and it requires publication of notice in the newspaper, appointment of a Guardian ad Litem to represent minors or incapacitated adults, recognition and determination of the heirs by the Judge (Master-in-Equity) and issuance of a Master's Deed by the Court. Family members can also agree on the division of the land, but all interests must be taken in account. In addition, any heir not wanting their interest in the land will have to legally transfer that interest, which is usually done by quit claim deed. The court will typically accept family agreements if there is enough land to divide. Mediation services are available to help families reach an agreement.
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