What should be done if my father died intestate 40 years ago and his estate was never probated?

UPDATED: Sep 3, 2014

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What should be done if my father died intestate 40 years ago and his estate was never probated?

His property, a house and a piece of land which was never probated. Our family wants to do that now, so that my mother can make a will and leave the property to whomever she chooses. After doing lots of research, I’ve learned that an attorney is not absolutely necessary to handle this issue. And with the estate in question being small (less than $50,000) and the entire family being in agreement, I believe we handle this without an attorney. However, the probate court in the county where the property is tells me that I must hire an attorney because my father died intestate so long ago. Is this true? I can’t find such a requirement anywhere in state law.

Asked on September 3, 2014 under Estate Planning, South Carolina


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You say "his property" here.  By that did you mean he held it as separate property or was it jointly owned with your Mom with rights of survivorship?  Jointly held property passed to her automatically at the time of his death and she should only need his death certificate to have a new deed issued (which I would strongly suggest that you ask an attorney to do). If it was his separate property then it has to go through probate and it falls above the $10,000 small estate provision. As far as I know you do not need an attorney in any state to probate an estate, but the clerk may have been cautioning you because there will probably be affidavits to write indicating what took you so long and heirship, etc., and an attorney will be familiar with that. May I suggest that you seek help on a flat rate consultation basis? So at least you know what the road ahead will be?  Good luck.

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