I have the house Deed - father died without will

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Latest post 11-10-2008 7:58 PM by Happy2. 11 replies.
  • 11-07-2008 10:51 AM

    • Happy2
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    Question [=?] I have the house Deed - father died without will

    My father passed away recently without a will. I had asked some questions about a week ago. Now I actually have the deed to the house. I want to know if I am entitled to any ownership in the house at all.

    The overall response was it depends on how it is written, but would probably go to his spouse 100%. This is the house in South Carolina that is sitting there.

    House is paid off in full. Here is how the deed reads:

    Know all men by these presents, that NAME HERE OF THE PREVIOUS OWNER in consideratoin of AMOUNT PAID

    granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release unto S. Joe Smith and P. Darlene Smith, their heirs and assigns, forever:

    legal description of property, etc.

    I changed the names above to protect their identity. My father is Joe Smith. Darlene is my step-mother. Dad had two children - my brother David and myself. Daddy and Darlene had no children of their own. Darlene never had children of her own.

    So do I own part of this property? If so, how much do I own? I am an heir.

    Thank you so much for helping me out.
  • 11-07-2008 12:10 PM In reply to

    • Drew
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    re: I have the house Deed - father died without will

    You need to know if in SC that language construction means JWROS or TIC or TBE---usually there is case law or something that says what it means if its not laid out carefully.

    To Joe Smith AND Darlene Smith might mean as tenant in common in some jurisdictions but you need to know the answer for SC.

    If its TIC then Dads 50% is likley to get split as per SC's intestacy law--I know not where that leads you.

    If its JWROS or TBE then SM takes it all.



  • 11-07-2008 12:18 PM In reply to

    re: I have the house Deed - father died without will

    "I want to know if I am entitled to any ownership in the house at all."

    Depends on how much debt your father has,

    "The overall response was it depends on how it is written, but would probably go to his spouse 100%."

    Well, if he owned it with someone else, yes.

    You'd have to ask a SC real estate attorney if the owning parties are husband and wife but the deed is silent on the issue of their being husband and wife whether the state deems that they held as tenants in common or joint tenants.

    "So do I own part of this property?"

    Have no idea. And even if ownership is as tenants in common (best possible outcome for you), then your father's half is still subject to estate debts.

    You need to consult with a SC real estate attorney on this issue. If the law doesn't deem that they held as joint tenants w/ right of survivorship since they were married (if it does, then wife owns 100%), then you'd have to address father's interest in an ancillary probate proceeding there in SC, with primary probate being in the city-county where he was a legal resident when he died. (It's not clear whether he just owned property there or whether he was a legal resident there.) If as tenants in common and he died without a will, his wife would get at least a third of HIS half-interest in the place, with the rest going to you two children.
  • 11-07-2008 2:02 PM In reply to

    • Happy2
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    Question [=?] re: I have the house Deed - father died without will

    Daddy did not have any debt. He has a 401K with wife as beneficiary - no problem she can have it all - but she wants my brother to manage it since he is savvy about investments and she is not. She is going to give him POA to do this. This is also great because I feel he can manage it well. Also, Darlene (wife) received 30,000 life insurance and that is perfectly fine.

    Daddy owns two cars in his name only. He was a resident of the house and it is fully furnished. Two cars are sitting there also. His wife went to stay with her mother. She is unable to live on her own. Darlene is unable to drive a car also.

    Everyone involved (my brother, Darlene, Mother, Darlene's sister, and myself) decided we would resolve the house, car, 401K issues after the funeral. This is when I fist heard that the sister didn't know what she would do with the house. This was after the funeral with about 150 people in attendance. I did not feel it was appropriate it to begin a discussion about it that moment and that day. I wish I had now. Did not see them again privately prior to flying home. Funeral was November 1, 2008.

    I guess I will call Darlene and ask her what her wishes are about the house?

    Darlene is in poor health. This is why I am trying to get papers on house changed if necessary ASAP. I am worried she will pass away and then I think her mother would inherit it. My Dad would turn over in his grave on that one.

    Daddy always said he wanted his kids to have the house. He told us, he told her, he told other people. Darlene even told us we got the house while Daddy was sick in hospital. Problem seems to be now Darlene's mother has different ideas about it. Darlene's sister talked about Darlene keeping it - and sister would get house upon her mother's death. Just see it slipping away. I know this is not what Daddy wanted. We are all over the country so it makes the paperwork even harder to get accomplished.

    I will check South Carolina law about the wording and what it means. We were hoping to not go through probate court. Just change the deed and change the titles on the cars.

    Who gets the funiture in the house?

    Let me find out what SC law is about deed and post back if I find out so others can learn from my posting.
  • 11-07-2008 2:31 PM In reply to

    • Happy2
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    re: I have the house Deed - father died without will

    Would the type of ownership be on the deed somewhere?
  • 11-07-2008 3:57 PM In reply to

    • Happy2
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    Feedback [*=*] Update - read SC Law and ammendments

    I have researched the original law about South Carolina Property and Conveyances. This is Section 62-2-804. Next I found the section that supersedes any conflicting provisions of the orginial section - believe me it was confusing.

    South Carolina law - this deed shows they are tenants in common. It is always tenants in common unless they specifically state: "as joint tentants in common with rights of surviorship, and not as tenants in common"

    The updated section goes on to explain the Joint tenancy includes, and is limited to - and has the list of following incidents of ownership.

    Since the deed does not state this extra working that South Carolina approved in 2007 end of session - then the result is Tenants in Common. South Carolina does not recognize the right to surviorship - this change in 2007 does give people the opportunity to add this type of wording to their property titles and real property. That is probably why the deed reads his heirs and assigns forever...

    So I own some part of the house. Thank goodness. Now I will have to contact lawyer to tell me how to change the deed properly or I could do more research. Need to order the death certificate. Law states I get 25%, it could also be 1/3 of house under certain circumstances. I am just so glad to know that I have some type of vested interest in the home. It truly is about what my Dad wanted - and 25% is great. I don't feel like our entire family split into two pieces now. Even married they are not joint tenants. It must have the additional wording -

    South Carolina does not recognize the righs of surviorship - and until 2007 it looks like there was no way to even try to change that.

    I hope this helps someone else - it makes me feel better. It is like I still have a part of my Dad. I don't want or need the money or the house. I just wanted to be part of his death. He loved me so much and I loved him with all my heart and soul. May he rest in peace.
  • 11-07-2008 4:49 PM In reply to

    • Drew
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    re: Update - read SC Law and ammendments

    No, not necessarily--if Dads share was TIC then his 50% goes into intestacy--and wife gets a big cut of intestacy--but yes, his kids get equal share of rest--which might be 25%.

    Butif Wife gets say 70% combined--its her call to give it to postman or whatever when she goes...so things could get messy--I'd try to get smooth waters before Mom gets to messed up in her desires--this is intrafamily diplomacy 101 not legal science.



  • 11-07-2008 9:32 PM In reply to

    • Happy2
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    More [=+=] re: Update - read SC Law and ammendments

    There is not a will at all. From what I read all day long here is short version.

    There is no tenancy by the entirety for real property or personal property. Join tenancy recognized for real property and some personal property, not including stocks and bonds, if the deed or other document expressively states the the property is to be held in joint tenancy "with the right of surviorship" The interstate-share law states the spouse gets everything if there are no surving children. If there are children, the spouse gets half of the estate. Any elective rights? Yes, Spouse may take one-third of estate. Any automatic-share law? Yes some personal property and $5,000. title 27 - Property and Conveyances, form and execution of conveyances - South Carolinoa current though the end of the 2007 regular session.

    So do you know what that means in layman terms?

  • 11-07-2008 9:37 PM In reply to

    • Happy2
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    Note [#=#] State is South Carolina - I live in Texas and need answers

    just to add - I own my home with my husband in Texas. It is worth four times the value of my Dad's house. I am following through on this because of the principals of his wishes. I don't need his house.
  • 11-10-2008 9:33 AM In reply to

    • Drew
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    re: Update - read SC Law and ammendments

    Laymans read toanother layman:

    The rules as to RE title language s are very state specific and apparently SC is quite specific that if a title is not precisely worded as JWROS then it is TIC. You need to confirm that view and the language of your title, but is sure looks like the makers failed to set it up as JWROS and it is thus TIC, so says the state--wheich may or may not have been thier intention..

    One doesn't elect against intestacy--the rules of intestacy are sort of cast in concrete. Spouse gets 1/2 and last I looked 1/2 > 1/3


    Of course somebody needs to proceed to seek administration under intestacy--and it need NOT be the spouse--

    Simplified:

    SC says spouse takes 1/2.

    So if spouse already owns 1/2 and get 1/2 of whats left then Dads kids get the remaining 1/4

    (Costs and fees come into play and are off the top of the pot generally)

    As owner of 1/4 you are in position to force a sale or a buy out--but until intestacy administration nobody is in position to do anything....l



  • 11-10-2008 7:54 PM In reply to

    • Happy2
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    Feedback [*=*] re: Update - read SC Law and ammendments

    sorry for my ignorance in this matter. His wife has bi-poplar and many health issues so time is of the essense. She wants my brother to manage the 401K she inherited. He is sending her a POA to sign for him to do and we are also sending a quit claim deed at the same time to get it out of her name and transferred to ours.

    We are trying to avoid probate. However if deeds and forms are not signed my brother and I plan to go directly into a probate situation.

    His wife is not our problem. Her mother is the one now trying to grab everything so that Darlene can be fine. Well they are both one month away from death - and then it would all go to Darlene's sister - My Dad also told them and everyone we get the house (brother and I) so we are going to send deed to be transfered for her sign. If we run into "family fued" then we plan to change gears and play by the book.

  • 11-10-2008 7:58 PM In reply to

    • Happy2
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    re: Update - read SC Law and ammendments

    Can I be an intestacy administrator? How do I become the one that does this? What are my legal obligations and can it be the wrong choice for me to do so - like a hidden debt that I don't know about - does that mean I have to pay it when it appears?

    Thanks.
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