[SC] My grandparents passed down land to their 5 children. One uncle is refusing to transfer the 2 acres of land belonging to my other uncle. What can be done?

Lexi, Chatbot

I understand the situation with your family land in SC. To start addressing this issue, do you have a copy of your grandmother’s last will and testament that outlines the division of the land among her children?

Lexi, Chatbot

Have you or your uncle J.G. attempted to discuss this matter with uncle S.G. directly to try and resolve the issue of transferring the 2 acres of land?

Lexi, Chatbot

Is there anything else the estate lawyer should know before I connect you? Rest assured they’ll be able to help with transferring the land from S.G. to J.G. so that J.G. can gift it to you.

EsquireChamp

Greetings, my name is Esquirechamp.

EsquireChamp

To address the issue of transferring land from J.G. to you, it is essential to understand the legal framework governing the division and transfer of inherited property in South Carolina. The land in question is part of your grandmother’s estate, and the division of this estate is governed by her last will and testament.

Probate and Will Execution

The will must be executed according to South Carolina law to be valid. In the case of Collins v. Collins, the Supreme Court of South Carolina emphasized the importance of adhering to the probate procedures of the state where the property is located (Collins v. Collins, 219 S.C. 1 (1951)). This means that the will should be probated in South Carolina, and the executors must follow the state’s legal requirements for administering the estate.

Transfer of Property

In Taylor v. Goddard, the court held that beneficiaries could agree to a direct conveyance of property rather than a sale and division of proceeds, provided they pay the executrix her statutory fee based on the appraised value of the land (Taylor v. Goddard, 265 S.C. 327 (1975)). This precedent suggests that if all parties involved agree, a direct transfer of J.G.’s portion of the land to you could be arranged, bypassing the need for a sale.

Partition and Dispute Resolution

If S.G. refuses to cooperate in transferring J.G.’s portion of the land, legal action may be necessary. The case of Estate of Livingston v. Livingston discusses the application of the probate code and partition laws in South Carolina (Estate of Livingston v. Livingston, 404 S.C. 137 (2013)). Under South Carolina Code § 15-61-25, governing partition, J.G. could file a partition action to compel the division of the property, allowing him to transfer his portion to you.

Specific Performance

In South Carolina Nat. Bank of Charleston v. May, the court addressed the issue of specific performance in real estate transactions (South Carolina Nat. Bank of Charleston v. May, 211 S.C. 290 (1947)). If J.G. has a clear and marketable title to his portion of the land, he can seek specific performance to enforce the transfer of his property to you, despite S.G.’s refusal to cooperate.

To ensure J.G. can transfer his portion of the land to you, the following steps should be taken:

1. Verify that the will has been properly probated in South Carolina.
2. If all parties agree, arrange a direct conveyance of J.G.’s portion of the land.
3. If S.G. refuses to cooperate, J.G. may need to file a partition action under South Carolina Code § 15-61-25.
4. Seek specific performance to enforce the transfer of J.G.’s property to you.

These legal avenues provide a framework for resolving the dispute and facilitating the transfer of land from J.G. to you.

EsquireChamp

To verify that your grandmother’s will was properly probated in South Carolina, particularly regarding the land division among her five children, you need to ensure that the probate process adhered to South Carolina’s legal requirements and that the will was executed and admitted to probate correctly. Given the ongoing dispute between your uncles S.G. and J.G., it is crucial to understand the probate court’s jurisdiction and the procedures involved in contesting a will.

Probate Court Jurisdiction

The South Carolina Probate Court has exclusive original jurisdiction over all matters related to the estates of decedents, including the contest of wills, construction of wills, determination of property interests, and determination of heirs and successors (Code 1976 § 62-1-302). This means that the probate court is the primary authority for handling the probate of wills and related disputes. However, the circuit court also has jurisdiction to resolve real estate matters, including partition and quiet title actions, which may be relevant to the land division among your grandmother’s children (Code 1976 § 62-1-302).

Proper Execution and Admission of the Will

For a will to be properly probated, it must be executed according to legal requirements and admitted to probate by the probate judge. In Davis v. Davis, the court emphasized that wills must be proved before the probate judge of the county where the testator resided, and if the proof satisfies the judge, the will shall be admitted to probate in common form (Davis v. Davis, 214 S.C. 247 (1949))[2]. This process involves presenting evidence that the will is indeed the last will and testament of the deceased, and the probate court issues letters testamentary to the named executor (Davis v. Davis, 214 S.C. 247 (1949)).

Contesting the Will

If there is a dispute regarding the validity of the will or its execution, parties can contest the will in probate court. In Smith v. Lawton, the court remanded the case for an evidentiary hearing to determine whether the will was properly executed, highlighting the importance of proper execution in probate proceedings (Smith v. Lawton, 435 S.C. 179 (2021))[3]. Similarly, in Collins v. Collins, the court held that the validity of the will must be adjudicated before determining the distribution of the estate’s assets (Collins v. Collins, 219 S.C. 1 (1951)).

Ancillary Jurisdiction and Real Estate Matters

The probate court can retain ancillary jurisdiction over assets located in South Carolina, even if the will was probated in another state. In Tripp v. Tripp, the court affirmed that the probate court’s determination of the validity of an out-of-state probate did not preclude it from retaining jurisdiction over assets in South Carolina (Tripp v. Tripp, 240 S.C. 334 (1962)). This is relevant if there are assets or real estate in South Carolina that need to be managed or distributed according to the will.

Resolving Disputes and Legal Action

Given the ongoing dispute between your uncles, it may be necessary to seek legal action to resolve the property distribution. The probate court has the authority to hear and determine issues related to the estate, but if the matter involves real estate disputes, it may be removed to the circuit court for de novo proceedings (Code 1976 § 62-1-302). This allows for a thorough review and resolution of the dispute, ensuring that the property division is handled according to the will and legal requirements.

In summary, verifying that your grandmother’s will was properly probated involves ensuring that the probate court followed the correct procedures for admitting the will to probate, addressing any disputes regarding its validity, and managing the distribution of assets, including real estate. If necessary, legal action can be taken to resolve disputes in the circuit court, which has concurrent jurisdiction over real estate matters.