Disclaimer

This article is educational only and is not legal advice. For guidance about your specific situation, consult a licensed South Carolina attorney.

Detailed answer — who can sell the house and how a mortgage affects the sale

When a person dies owning a house that still carries a mortgage, the mortgage does not disappear. The decedent’s estate remains responsible for the debt. Whether you can sell the house during probate depends on who controls the property and whether the personal representative (sometimes called executor or administrator) has authority to sell. Under South Carolina probate practice, the personal representative generally manages estate assets, but sales of real property often require either authority in the will or court approval.

1. Who controls the house?

If the house was owned solely by the decedent, it becomes part of the probate estate and the appointed personal representative controls it during probate. If title passed automatically (for example, joint tenancy with right of survivorship or a living trust), the property may bypass probate entirely and the surviving owner or trustee may control sale decisions.

2. Does the personal representative have power to sell?

Many wills grant the personal representative power to sell estate real property without a court order. If the will does not give that power, or there is no will, the personal representative may need the probate court’s authorization to sell. South Carolina’s probate code and court procedures authorize personal representatives to manage and dispose of estate property as necessary to pay debts and settle the estate; in practice, this often means petitioning the court for an order to sell real property when the will is silent. For an overview of the probate code, see the South Carolina Code of Laws, Title 62: https://www.scstatehouse.gov/code/title62.php.

3. What does the mortgage lender require?

The mortgage remains a lien on the property. A buyer’s lender or closing agent will almost always require the mortgage to be paid off (released) at closing so the sale transfers clear title. The estate typically pays the mortgage from sale proceeds. If the sale price is less than the mortgage balance (an underwater property), the lender must agree to a short sale, deed-in-lieu, loan assumption, or the estate must cover the deficiency. Lenders have their own rules and may require documentation showing the personal representative’s authority or a court order authorizing sale.

4. Practical pathways to sell during probate

• Sale under will authority: If the will grants the power to sell, the personal representative can usually proceed with listing and selling, subject to standard closing requirements and notice to creditors.
• Sale with court approval: If the will lacks express authority, file a petition with the probate court asking for an order authorizing the sale. The court evaluates whether the sale is in the estate’s best interest.
• Sale by non-probate transfer holder: If title passes outside probate (joint owner, trust, transfer-on-death), the non-probate holder handles the sale; mortgage payoff still applies.
• Short sale or lender negotiation: If the mortgage exceeds market value, the personal representative can request lender approval for a short sale or other workout. Lender consent is required and not guaranteed.

5. Creditor claims and distribution of sale proceeds

Proceeds from a sale of estate property first pay valid estate expenses and creditor claims, which include the mortgage. South Carolina law requires notice to creditors and allows claims within applicable timelines. After debts, the personal representative distributes remaining funds to beneficiaries according to the will or intestacy rules.

6. What if you sell without authority?

Selling real property without proper authority (no will power, no court order, and not a non-probate transfer) can create serious problems. The sale could be reversed or the personal representative could face liability. Always confirm authority before completing a sale.

7. Typical steps to complete a sale during probate in South Carolina

1. Confirm how title is held (solely by decedent, joint tenancy, trust, etc.).
2. Review the will for sale authority or file for appointment as personal representative if not already appointed.
3. Contact the mortgage lender early to identify payoff amount and any requirements for release or loan assumption.
4. If required, petition the probate court for an order authorizing the sale. Provide proposed terms to the court if requested.
5. Provide required creditor notice and clear outstanding estate debts from sale proceeds.
6. Close the sale with clear title and record the mortgage payoff/release.

8. Where to find the law in South Carolina

South Carolina’s statutes governing probate, personal representatives, and estate administration are in Title 62 of the South Carolina Code of Laws. For general statute access, see: Title 62 — Probate Code. For procedural court rules or local probate forms, check the South Carolina Judicial Branch: https://www.sccourts.org.

Helpful hints

• Start by checking the deed: confirm whether the property was solely in the decedent’s name or passed outside probate (joint tenancy, trust, transfer-on-death).
• Locate the will and any document granting sale authority to the personal representative.
• Get a current mortgage payoff quote early—lender instructions can delay a sale if not followed.
• Talk to the mortgage servicer about options if the property is underwater (short sale, deed-in-lieu, assumption).
• If the will doesn’t authorize a sale, plan for a court petition. Expect the court to require notice to interested parties and possibly a hearing.
• Keep detailed records of marketing, offers, and expenses; the probate court may review the sale’s reasonableness.
• Consider title insurance and a title search to reveal liens or claims before closing.
• Consult a South Carolina probate attorney early to avoid mistakes that can delay closing or trigger liability.