What we get asked the most
Frequently Asked Questions
Learn More about real estate, probate, wills, estates, and business formation.
Frequently Asked Questions
Real Estate FAQ
Do I need an Attorney?
What are the Five Essential Components of a Real Estate Closing?
Title search, loan documents, closing, recordation of documents, and disbursement of transaction funds. Each of these steps must be supervised by an attorney in order to protect the consumers.
What do I need to bring to closing?
You will need to bring a current (not expired) government-issued identification with your photo on it, such as a driver’s license, passport, or military ID. If you are the buyer, the money you bring to closing needs to be wired to the attorney’s trust account.
What are the steps to the closing process?
- Step 1: Receive the contract: Once the contract is signed, the closing attorney will reach out to all parties to gather information on the transaction from the buyer and the seller.
- For the Buyer: The attorney coordinates with the lender to obtain the banking documents, as well as keeps tabs on receiving invoices from third parties and orders a title search.
- For the Seller: The attorney gathers the information about open mortgages that need to be paid off, title examination reports, and homeowner association documents.
- Step 2: Examine the title to the property: Learning the history of your soon-to-be property. Examining a title means to research the chain of ownership (or deeds from one owner to the next) going back at least 40 years or more for the particular parcel of land. The examiner looks to verify that all mortgages or liens against the property have been satisfied and lists any easements or defects in title. Often a title search requires research on the exact parcel that has been deeded. Over the course of the prior decades, the piece of land could have been combined or divided.
- Step 3: Apply for Title Insurance: Once a clear title is determined and the attorney has issued a “Title Opinion, ” the office will apply for title insurance. But what is title insurance? It’s a binder and policy that insures the good title of the property so the lender is assured it can be used as collateral for the loan.
- Step 4: Collect and prepare documents: The attorney’s office will collect all the documents from the lender, and the disclosures and more from the realtor’s closing coordinator. Then the deed and settlement statement are prepared. A full package of all the necessary paperwork to finalize the purchase are prepared.
- Step 5: Closing Day: Parties meet at the attorney’s office where the attorney explains all the legal documents to the parties and walks each party through what needs to be signed, and how it affects that party. A buyer can expect the closing attorney to fully explain the loan documents (interest rate, amortization schedule, late payment or prepayment penalties, term of the loan and maturity date, events of default, to name a few).
- Step 6: Disbursement: The attorney then disburses all funds that were brought to closing: the lender, the seller, the buyer. These funds are held in a trust account until disbursement. Then, the attorney coordinates the payment based on the settlement statement. Prior mortgages are paid off, bills from third parties that were included in the transaction, commissions, and seller’s funds.
- Step 7: Recording the Legal Documents: All executed and pertinent documents to the transaction are filed in the appropriate public records and proper indexing is verified. The attorney’s office then continues to follow up with the lenders to make certain the satisfactions of liens/mortgages are filed where appropriate, and file for the final title insurance opinion. The buyer and seller receive original documents that have been filed and a record book of the transaction.
What is a Property Survey and are they Required?
- A property survey, also known as a boundary survey or plat, is a precise, professional measurement used to determine or validate the plot of land a home is built on and where the property lines are located.
- While many jurisdictions require a property survey be done, they are not mandatory. Real estate is one of the biggest investments a person can make, thus obtaining a property survey is one way of protecting an individual’s investment. A survey will reveal geographic evidence of whether others can claim a right to use your property via easements.
When is a Survey Required?
- Before a title to land is conveyed, it is advisable to have an up-to-date land survey of boundaries and acreage in order to prepare an accurate legal description of the property. It is important to make sure that land usage conforms to legal description and to determine whether any structures encroach onto the subject property or project off of the subject property onto adjoining property.
- Before land is subdivided, a survey must be performed in order to meet city, county and State subdivision regulations.
- Before undertaking improvements (i.e., buildings, fences, etc.), in order to determine the exact location of property boundaries, as well as any easements or rights-of-way that may affect the subject property. This will aid in avoiding encroachments which could lead to potential lawsuits.
I am married, but the house I am selling in South Carolina is in my name only. Does my spouse have to come to the closing?
No, your spouse will not need to sign the deed. While spouses have potential property rights in any real property their spouses owns, South Carolina abolished dower laws in the 1980s. Absent a Court Order establishing a spouses interest in the real property, the owner of record on your deed is the only signatory necessary.
What about in North Carolina?
In North Carolina, the rule of thumb for married couples is that one spouse may purchase real property, but both spouses must sign the deed to sell property.
Frequently Asked Questions
What do I need to do to get started with probate?
Once you complete the estate opening packet, we will assist you with opening the estate once we receive your documentation.
What is the purpose of probate?
Probate is the process by which assets are transferred from the decedent to his or her heirs or devisees.
If I have someone’s original will, what do I do with it?
South Carolina law requires that you deliver the will to the Probate Court within thirty (30) days after the person’s death. You will bring the original Will to you meeting with one of our attorneys.
How do I know if I need to go through the Probate Court?
Regular Estate: If the decedent owned any real property (home, real estate), or if he or she owned personal property (boat, car, mobile home, jewelry, furniture, etc.), worth more than $25,000, someone will need to open a regular estate on behalf of the decedent.
Small Estate: If the total value of the decedent’s belongings is less than $25,000, and if no real property is involved, someone will need to open a small estate. Note: A small estate cannot be opened until more than 30 days have passed since the date of death.
Estate for Legal Actions: Even if the decedent had no belongings, you may still need to open an estate if any legal action needs to be taken on behalf of the decedent (e.g., medical malpractice or wrongful death cases).
If the deceased was a permanent resident of South Carolina, was a non-resident with property in South Carolina, or was someone with the right to take legal action in South Carolina, the estate must be processed through the Probate Court.
What if the deceased did not have a will?
When someone dies without a will, their estate is called “intestate.” This means that their property will pass to the decedent’s heirs, in a manner according to state law. The state does not, however, take a part of the estate (unless there are no heirs).
Do I need an attorney?
The Probate Court is not allowed to provide legal advice to anyone. Therefore, in situations in which there may be complex legal issues, disagreements among heirs, etc., it is strongly recommended that you have an attorney. This is important for formal probate or appointment because it is necessary to file a summons, petition, and filing fee, and to serve the pleadings on the interested parties. A hearing will then be set for the presentation of testimony.
What is a Personal Representative?
A personal representative (formerly referred to as an “Administrator” or “Executor”) is the individual or individuals with the responsibility of administering an estate.
How does a Personal Representative get appointed?
A Personal Representative is often nominated in the will of the decedent. If the decedent did not have a will, South Carolina Law sets forth a priority list for determining who should be the Personal Representative (typically the next of kin).
Someone with priority has the option of not serving (by filing a form entitled “Renunciation of Right to Administer” – Form 302ES.). Anyone with priority may nominate someone else to serve. A person without priority may be appointed only through formal proceedings. Following service of the formal Summons/Petition, Probate Court will schedule a hearing to determine who should be appointed to administer the estate.
What are the duties of a Personal Representative?
The Personal Representative is responsible for collecting, protecting, and administering the estate. This includes giving notice to all interested parties, filing an Inventory and Appraisement of the estate assets, making sure assets are secure during probate, paying required claims and costs, filing all appropriate tax returns, and making sure that the proper people receive the assets to which they are entitled.
How long does it take to administer an estate?
A regular estate will take an average of one year to complete if all paperwork is filed in a timely fashion. State law requires that estates remain open for the shorter of one year from the decedent’s death or 8 months from publication for creditors.
Just like with a regular estate, once all paperwork is complete, small estates can be opened and closed relatively quickly. This procedure applies only when there is no real property, and the total of all personal belongings is less than $25,000. Please note that small estates cannot be opened until 30 days after the decedent’s death.
What if the person left only a motor vehicle and no other assets?
As of August 1, 2011, the Department of Motor Vehicles (DMV) has adopted new procedures. (The DMV will no longer use the Affidavit of Inheritance to transfer a vehicle.)
If the vehicle is titled in the name of two or more owners with an “OR” relationship, and the DMV is aware that one of the owners is deceased, the surviving owner(s) must present the title and proof of identification to the DMV. No probate documents are required.
If the vehicle was not jointly titled and is worth less than $25,000, you will need to open a “small estate” with Probate Court. The Probate Court will give you documentation to take to the DMV to transfer the vehicle.
What documents do I need to bring with me when opening an estate?
On your initial appointment, please bring the following items:
- The ORIGINAL will of the decedent (if there was a will)
- Original Death Certificate
- The “Estate Opening Packet” in the “Documents” section of this website;
- Photo Identification
- Paid Funeral Bill Receipt
- Copy of Deeds to all South Carolina Real Estate
- Copy of Title for all vehicles, mobile homes, etc.
Frequently Asked Questions
Wills & Estates FAQ
What estate planning documents should I have in place?
Everyone should consider a Last Will and Testament, Durable Power of Attorney, Health Care Power of Attorney and Declaration of a Desire for a Natural Death (or Living Will).
What are the requirements for a valid will?
The document must be in writing, signed by the person making the will (the “testator”). The testator must be at least 18 years of age and of sound mind. The will must be signed by two witnesses, who are not beneficiaries of the will.
Are Wills filed with the Probate Court after they are signed?
A will is not filed in the Probate Court office until the person is deceased.
Do I need a Will?
What if I never make a Will?
If there is no Will, then the laws of intestacy of the state of last residence control disposition of assets after someone is deceased. Those laws are typically found in the state’s probate code. Intestacy statutes vary by state. In South Carolina, the Probate Code states that if a decedent is married and has children, then assets are divided between children on the one hand and the surviving spouse on the other hand. The surviving spouse would have priority to serve as personal representative, but the Probate Court decides who to appoint. If there were no children, then all assets would go to the spouse. If there were children and no spouse, then assets are divided equally between children. Each child would have equal priority to serve as a personal representative. If the children could not decide among themselves who would serve as Personal Representative, then the Probate Court would decide who to appoint as Personal Representative. If no one else applies to be appointed as personal representative, then a creditor can apply to be appointed as personal representative of the estate.
Do I need a Power of Attorney?
A power of attorney is a written authorization, a legal document, to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person providing the authorization to another person to act is the principal or grantor allowing another to make decisions on their behalf. This document may affect property, assets, money, debts, health care, guardianship and for the care of ones pets. NOTE: When the principal dies, the Power of Attorney is no longer valid.
What is a Living Will?
A living will only addresses end of life issues. A Health Care Power of Attorney allows a person to make decisions for you if you are not able to consent, regardless of whether your condition is terminal. In South Carolina, a living will is also known as a Declaration of Desire for a Natural Death.
Do I need a Living Trust?
It depends! Living Trusts are incredibly useful, however, they are not meant for everyone. For some clients, carefully-tailored wills, financial and medical powers of attorneys, beneficiary designations, transfer-on-death (TOD) designations, and joint ownership will do the trick. For other clients, a living trust will be the best option.
What is a Revocable Living Trust?
A trust is a legal agreement for a trustee to hold certain property for the benefit of others. The trustee manages the assets held in the trust. A living trust is one that’s created while the property owner is alive.
What are the Advantages of a Revocable Trust?
- Avoids Probate: Assets held in a trust avoid probate proceedings. However, there are times in which the expense of setting up and administering a trust outweigh the expense of going through the probate process.
- Privacy: Probated wills are public record. This means that family, friends, creditors and anyone else who is interested may view the contents. Whereas a trust document is not public information, so a challenger would have to spend quite bit of money and file a lawsuit to discover the provisions of the trust.
- Avoids Multiple State Probate Proceedings: When you own real estate or other property in multiple states, probate proceedings must be initiated in each state. The time and expense of administering assets in multiple states may make setting up a revocable trust more feasible.
- Create Flexibility in Planning: For couples with children from prior marriages or property they wish to keep separated because it was acquired prior to marriage; a living trust provides methods of providing for the surviving spouse during his or her life while allowing those assets to be distributed to certain children. It can also be used to transfer property over time, rather than all at once.
Frequently Asked Questions
Business Formation FAQ
Do I need an Attorney to for my LLC?
Although it is not required, it is recommended that you hire a licensed Attorney to form your limited liability company. One of the reasons is for them to draft the Operating Agreement, Bylaws, and/or Resolutions that fit your company’s needs and to provide legal advice on how to keep your company in compliance and in good standing with the law.
What do you need to file to form an LLC?
To form a Limited Liability Company, you must file Articles of Organization with the Secretary of State.
What is an Operating Agreement?
The LLC Operating Agreement establishes the rules and structure for the LLC and can help address any issues that arise during the business operation. It is a contract between the LLC’s members that stipulates its membership, management, operation and the distribution of the company’s include. It further documents the roles, responsibilities, rights, and relationships of the members, as well as their respective ownership interests, and shares of profits and losses.
What are the steps in forming an LLC?
- Select a name
- Select a registered agent
- File Articles of Organization
- Set up Operating Agreement
- Obtain an Employer Identification Number
- Obtain State and Local Business Permits and Licenses
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