Who owns the house now?
The answer depends on how the house was held, and on the state.
- In a trust: the successor trustee handles it under the trust’s terms. No court is needed for the house. See trusts.
- Owned jointly with a survivor: it may already belong to the surviving owner, such as a spouse.
- In the parent’s name alone: it passes through the estate. In North Carolina, title passes to the heirs, or to the people named in a will once it’s probated, as of the date of death (N.C. Gen. Stat. § 28A-15-2). In South Carolina, the house passes to the people named in the will or to the heirs, subject to the powers of the personal representative (S.C. Code § 62-3-101).
Either way, the deed at the Register of Deeds still shows the parent’s name until something is recorded. Checking the deed is the first thing we do.
Do all heirs have to agree to sell?
In North Carolina, the heirs or the people named in the will own the house together. A sale by the owners generally needs every owner to sign the deed. If one owner refuses, another can ask the court to divide or sell the property, which is called a partition (N.C. Gen. Stat. § 46A-1). A sale by heirs soon after a death can also be undone for the estate’s creditors, depending on when the estate’s notice to creditors was published (N.C. Gen. Stat. § 28A-17-12).
The personal representative can also ask the Clerk of Superior Court for permission to sell the house to pay the estate’s debts (N.C. Gen. Stat. § 28A-17-1).
In South Carolina, the personal representative can sell real estate only if the will gives that power or through a court-approved procedure (S.C. Code § 62-3-711(b)). So nobody should list the house or sign a deed before a personal representative is appointed. Once the house has been deeded to the heirs, a sale needs every owner. An owner who won’t agree can be taken to court for a partition (S.C. Code § 15-61-10).
Moving the deed out of the estate
To keep the house in the family, the deed has to move into the right names. In South Carolina, the personal representative signs a deed of distribution to the heirs or the people named in the will (S.C. Code § 62-3-907). In North Carolina, title passes at death. A later buyer’s title search still has to show who owns the house, so the records need to be in order. We prepare that paperwork and record it in the county where the house sits.
Keeping it, buying a sibling out, or selling
Families don’t always agree. One child may want to live in the house, another may want the money, and a third may live out of state.
- Keeping it together: everyone stays on the deed. It’s simple at the start, but every later decision needs everyone.
- Buying a sibling out: one heir pays the others and takes the house. We prepare the deed for that transfer.
- Selling: the house goes to a buyer and the money is shared. We handle the legal steps before the sale. The closing itself is handled by a closing attorney, not by us.
When there was no will: heirs’ property
If nobody probated the estate, the house can pass down for years with the old name on the deed. Over time, it ends up owned by many relatives at once. This is often called heirs’ property. South Carolina has a law for court cases over heirs’ property. If one owner asks the court to sell it, the other owners can first buy that owner’s share (S.C. Code § 15-61-370). Clearing the title takes time, but it can be done.
Taxes: questions for your tax adviser
People often ask about capital gains tax on an inherited house, and whether the sale counts as income. Those are tax questions. A tax adviser or CPA answers them for your situation, and we’re glad to work alongside yours.
Book a first meeting
Call 980-243-4470 or request a time online. Tell us which state the house is in, whose name is on the deed, and whether an estate has been opened. You’ll leave the first meeting knowing who owns the house now and what has to happen before it can be kept or sold.
See probate for how estates are settled, or our probate pages for Charlotte, Summerville and Columbia.
Responsible attorneys: Christine Hart (North Carolina), 122 N. McDowell Street, Charlotte, NC 28204. Justin Montgomery and Tiffany Lumpkin (South Carolina), 201 Sigma Drive, Suite 300, Summerville, SC 29486.