In South Carolina, a problem can arise in the event of loved ones passing away without their estates being probated for over ten years.  Up until the ten year point, the courts will allow the regular probating of wills or intestacy probate.  After ten years, the only process available to ensure a proper chain of title is with the process of designation of heirs. It doesn’t matter if the person had a will or not, and this process is distinct from the normal probate process.  It can be extremely difficult, particularly if the time goes well beyond the ten years.  It’s best to consider hiring counsel for this process, and this should be done if the estate involved real estate titled in the deceased person’s name.

        The process involves multiple steps, and some similar to the regular probate.  The person wishing the petition the court to determine heirs must file the Summons, Petition for Determination of Heirs, filing fee, and, if not already filed, a death certificate all with the Probate Court. The Petition should allege all who the heirs were at time of death by alleged facts, which probate law was in effect at time of the loved one’s death (Note that a copy of statute in effect at the time should be attached). The petition should also include allegations as to why probate administration was not done at the time, but being done now. ·

       After the filing of the above documents, the petitioner must then serve pleadings on all interested parties and file proof of service (note: interested parties would include all potential heirs by the law at the time of death). · Respondents/Defendants have 30 days after being served to file their response/answer back to the petitioner. · After the sooner of 30 days having passed, or when the Answers have been filed, a hearing will be set by the court (upon request) 120 days from the initial filing date. Note: If all parties are in agreement to set the hearing earlier, the hearing can be set, keeping in mind that a 20-day notice of the hearing is required. Also note that the hearing cannot be waived even upon agreement.

    At the said hearing, the petitioner must present testimony from a witness who testifies he knew the decedent most of his life and can testify to there being no other heirs.  This is normally more of an issue for male decedents who might have had biological children outside the known family.  Following the hearing and the Probate Judge’s determination of heirs, the petitioner or his attorney will prepare an Order for the Probate Judge to sign. Note: If you don’t hire an attorney it is imperative to to record the Order at the Register of Deeds Office if real property was involved.  This requires necessary information about the real property, such as property description, derivation, complete.

      In the end, the determination of heirs ensures that titling of property, particularly real property is not tied up indefinitely, hurting everyone in the decedent’s family.  It allows for property to remain with the family or sold with good title.