Detailed Answer

Overview: When a decedent left a will that is old or does not reflect later events, you must first determine whether that document is the valid will that controls the estate. In South Carolina you must present the original will to the probate court, have a personal representative appointed, and then follow court-supervised steps to collect assets, pay debts, and obtain authority to sell real property if needed.

Step 1 — Confirm whether the will is valid and current enough to control the estate

Key questions to answer:

• Is there an original signed will with the required witnesses? A will must meet formal requirements to be admitted to probate.
• Was a later will or codicil executed? A later valid will supersedes an earlier one.
• Did life events (marriage, divorce, birth of children, adoption) or statutory rules change who should inherit? Certain events can revoke or alter gifts under a will.

To start, file the original will with the probate court in the county where the decedent lived. The South Carolina Code that governs probate and fiduciary matters is in Title 62. See South Carolina Code, Title 62: https://www.scstatehouse.gov/code/t62.php.

Step 2 — Obtain letters from the probate court (appointment of a personal representative)

If the will is admitted, the court will issue letters testamentary to the person named as executor (or appoint someone if the named person cannot serve). If there is no valid will, the court will appoint an administrator and issue letters of administration. These letters are the formal authority to act for the estate. You must have them before the court or third parties will accept your authority to sell or transfer assets.

Step 3 — Inventory assets, notify creditors, and pay required expenses

The personal representative must inventory estate assets (including real property), notify creditors, pay debts, taxes, and administration expenses, and marshal assets for distribution. If real property must be sold to pay debts or to effect distribution, the representative needs legal authority to sell.

Step 4 — Get authority to sell the property

There are three common paths to get authority to sell real estate in South Carolina:

1. Executor power in the will. If the will specifically grants the executor power to sell real estate, present the will and letters testamentary to buyers and title companies. Confirm the statute and local probate rules before relying solely on language in the will.
2. Court authorization. If the will does not clearly authorize a sale, petition the probate court for an order authorizing the sale. Typical grounds include paying debts, expenses of administration, or making an equitable distribution of assets when the estate or beneficiaries require it.
3. Sale by agreement of all heirs/beneficiaries. If all heirs or beneficiaries agree to a sale and will sign a written release or consent approved by the court, that can simplify the process — but you still usually need the court’s approval or a closing will need to include an executor’s deed supported by proper letters.

Practically, a buyer’s title company will want to see: (a) letters testamentary or letters of administration; (b) a certified copy of the order admitting the will (if any); (c) a court order authorizing the sale if the will does not expressly grant that power; and (d) an executor’s deed signed at closing. A probate court order is the safest way to eliminate title objections related to an old or unclear will.

Step 5 — Follow the court’s sale procedure and close

If the court authorizes a sale, the court order will set terms: notice requirements, whether the sale must be by public auction or private sale, confirmation procedures, and distribution of proceeds. After sale and court confirmation (if required), the personal representative executes an executor’s deed transferring title to the buyer.

Timing and practical considerations

• Probate can take several months to more than a year depending on estate complexity and creditor claims.
• Title companies may insist on a court order when a will appears outdated or ambiguous before insuring a sale.
• If creditors or heirs contest the will or the sale, expect additional hearings and delays.

When you should get a lawyer

Consult a South Carolina probate attorney if any of the following apply: the will’s validity is unclear; heirs or beneficiaries dispute the will; significant real property exists; you need a court order to sell; or creditors or taxes are complex. A lawyer can draft petitions, represent you at hearings, and coordinate with title and closing agents.

Relevant South Carolina authority

South Carolina probate rules and statutes appear in Title 62 of the South Carolina Code of Laws. For statutory text and to review specific provisions that may affect executor powers, appointment, and administration, see: South Carolina Code — Title 62 (Probate, Estates, and Fiduciaries). For forms and local probate practice, contact the probate court clerk in the county where the decedent lived.

Disclaimer

This article explains general steps under South Carolina law and is for educational purposes only. It is not legal advice. For advice about a particular case, consult a licensed South Carolina attorney.

Helpful Hints

• Locate the original will immediately. Courts will not admit copies unless a copy-only situation is proved.
• Obtain several certified copies of the death certificate — banks and the courthouse will request them.
• Gather deeds, mortgage statements, tax records, insurance policies, bank statements, and a list of likely creditors before filing for probate.
• Ask the probate clerk what local forms and notice requirements apply in your county.
• If selling real property, speak with the title company early; they will tell you what documents and court orders they require to insure the transaction.
• Consider a temporary escrow or holdback for potential creditor claims if the sale proceeds will be distributed quickly.
• Keep full records and receipts for all estate transactions—the court and beneficiaries will request them.
• If beneficiaries agree to a sale, get written waivers or consents and present them to the court to speed approval.