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legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 10224
Experience:  Just Answer consultant at Self employed
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Property was owned by Husband and Wife. • Husband 50%, 4/8

Customer Question

Property was owned by Husband and Wife.
• Husband 50%, 4/8 share
• Wife 50%, 4/8 share
They have 1 child together (child) and she has 1 child previous to marriage (step-child)
Wife died 1992 Intestacy and probate was never done.
Property Division:
• Husband- 6/8 share , His 4/8 plus 2/8 of deceased wife (1/2 of her share)
• Child- 1/8 share, He splits the remaining 2/8 of her share with Step child
• Step Child- 1/8 share
Husband remarries 1999 she is referred to as New Wife
Husband dies 5/29/12 Intestacy. Probate completed 3/2013.
Deed of Distribution filed in York Co. SC, 4/2016 by New Wife as Personal Representative.
Property Division:
New wife and Child each receive ½ of Husbands total share of 6/8.
• New Wife- 3/8 share
• Child –4/8 Share (3/8 share plus he already had 1/8 share)
• Step Child – 1/8 share. Step child still has 1/8 share
We want to purchase this property. The New Wife is 3 years behind on Property taxes and has no money to pay them. Property was set to go to auction on Monday so I have just paid all past due property taxes on this land. A friend said since the Wife's estate never went thru probate they can not get a clear title.What does New Wife, Child and Step Child have to do in order to get a clear title to be able to sell this property?
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  legalgems replied 11 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  legalgems replied 11 months ago.

I am sorry to hear that- when probate is not initiated it does put a cloud on the title and makes it difficult to transfer title; however there are remedies.

For example, a person of interest (the current owner, a person under contract to buy the home, etc) can file a petition with the court in the county where the property is located. It is called an Action to Clear Title. This is an equitable remedy, and requires the drafting of the custom action (ie no standard template exists). The proof required would be copies of death certificates, any relevant Letters Testamentary or other documents pertaining to the property, affidavits of heirs, etc, to show the chain of title and how it was informally transferred over the years.

It generally takes at least 3 months to clear the title, so until that is done, there essentially is not a "marketable" title so any purchasers would be taking a risk, as normally the seller would clear title before marketing the property.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  legalgems replied 11 months ago.

Checking to see how the above worked out for you.
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