Can I Change Property In My Late Spouse’s Name To My Name?

By Jada Gaines CONTRIBUTOR

Barbara (“Barbie”) and Kenneth ( “Ken”) were married for over 40 years. Ken recently passed away. At the time of Ken’s death, and in addition to the assets jointly owned with Barbie, Ken’s list of assets includes one car and a lake house in his own individual name. Barbie, who is the primary beneficiary of Ken’s estate as outlined in his Last Will and Testament (“Will”), wants to trade in the car to purchase a new pink convertible and sell the lake house. Unfortunately, Barbie was turned away at the dealership and couldn’t immediately sell the lake house to an interested buyer because these assets were in Ken’s name. Barbie wants to know how she can transfer the title to the car and deed to the house into her name, or, how she can be authorized to sell these assets to another third party.

Barbie will have to probate Ken’s estate to gain the legal authority to make the transfers.

What’s Probate?

Probate is a formal legal process that gives recognition to a will and appoints the Personal Representative (or executor) (“PR”) who will administer the estate and distribute assets to the intended beneficiaries. The probate process in each state varies based on that state’s laws. Here, Ken’s probate estate will take place in South Carolina.

Involved Assets:

A probate estate consists of only those assets in which a decedent passed away owning in his or her individual name, and/ or assets that are payable to the decedent’s estate. Here, Ken’s probate estate assets consist of only his car and the lake house.

Probate Process:

The South Carolina Probate Code

(“Code”) outlines and directs how a probate estate is to be handled. The Code specifically directs that a decedent’s estate be probated in the county in which he or she was domiciled at the time of death. Once the proper venue has been identified, the PR files a petition to probate with the respectable court, along with the decedent’s Will (if any), proof of death, and pays a filing fee.

Probate Time Frame:

At minimum, a probate process in South Carolina can take at least one year to close. A major chunk of this time frame is due to the eight (8) month statutory period in which any creditor has to file a claim against a probate estate. Keep in mind that not all probate cases are going to be identical. The time frame of the estate can largely vary based on the value of the estate and other factors such as if there are one or more beneficiaries, will contests, creditor claims, etc.

Why can’t a Power of Attorney (“POA”) be used instead?

POAs are only lifetime estate planning tools. This means that once the person who has granted the POA to an agent has passed away, the POA has ended – it can no longer be used. Barbie, like many other individuals, mistakenly thought that the POA she had over Ken could be used to make the transfers.

Remember, having a Will does not avoid the probate process. Contact a local estate planning attorney today to learn more about the probate process, steps that can be taken to avoid it, and create a reliable estate plan that uses the best tools to address your wishes.