Why Real Estate Without a Will can Become a Legal Ghost Story
There’s a house on the edge of town. It’s not glamorous, just a modern one-story brick ranch with some overgrown hedges and faded gutters. The mailbox leans a little, like it gave up long ago. The neighbors say someone used to live there, but no one’s been seen coming or going for a long time.
That house? It’s stuck. Not because it can’t be sold, but because no one has the legal authority to do anything with it. Its owner passed away without a will, without a trust, and without naming a personal representative. Now, that little house is trapped in a kind of legal purgatory. Sounds like a broken record… almost like I touched on this in my last blog, right? So let’s dive deeper.
This happens more often than you think, and the legal ripple effects are far more real and expensive than most families ever imagine.
So, when does property become a legal problem?
When someone dies without a will (it’s called dying intestate), their assets don’t automatically transfer to their next of kin. In South Carolina and most states, those assets go into probate, where the court determines who is entitled to what based on the state’s intestacy laws. This includes real estate, especially if it’s titled solely in the deceased person’s name. The problem? That real estate can’t be managed, rented, refinanced, or sold unless:
- A probate estate is opened;
- A personal representative is appointed; and
- Title is formally transferred to heirs or a trust.
If none of that happens, or if the heirs are distant, unknown, or in disagreement with each other, then the property just sits there. Year after year. Property taxes go unpaid. The home deteriorates. Sometimes, the city eventually takes action, but not before serious legal (and emotional) damage has been done.
Here’s why a Will isn’t optional:
We talk about trusts a lot (and they’re great tools), but let’s be clear: a basic will is absolutely essential. A Will:
- Names who inherit your property (so the state doesn’t decide for you);
- Appoints a personal representative to handle your estate;
- Speeds up the probate process;
- Reduces confusion and infighting among your family.
Without it, the court chooses the personal representative, and they’re not usually so quick about it. The probate court decides who gets what, and again, they’re not so quick about it. And in the meantime, nothing can be sold, transferred, or fixed until these steps are complete.
The takeaway is: if you own property, even just one modest home, you owe it to yourself and your loved ones to have a plan in place. Because without one, that home could sit… and sit… and sit… until it becomes someone else’s burden, but your legacy and your loved ones deserve so much better than that.
Let’s play out some common scenarios that can leave a property stuck:
- An elderly parent dies, and the adult children think they can “figure it out later.” Years pass, one child pays the taxes informally, but there’s no legal record. When they try to sell, no one has clear title.
- A single person dies with no kids and no will. The court has to trace family lines, think: siblings, nieces, nephews, distant cousins, etc. All to figure out who is entitled to the property left behind. It can take years.
- A house is passed down verbally or with a handshake, but unless the deed is changed or a will is in place, the legal owner is still the person who died. And back to the example above to chase down their heirs.
The simple math is this: an estate plan, such as a basic will, could have prevented the gridlock caused in these examples plus save time and money for everyone involved.
Getting crafty with your options
If you want to take it a step further, a revocable living trust allows you to transfer real estate out of your personal name during your lifetime. You still control the home, but when you pass, there’s no need for court approval. Your successor trustee can immediately sell, distribute, or rent the property based on your instructions. This is often the smoothest and most private path, especially if you own multiple properties, including out of state; if you want to avoid probate delays and curate how each asset will be managed/passed on; or if you plan to leave property to multiple heirs or a trust beneficiary. More on trusts later.
If you want help making sure your property doesn’t become a forgotten house, reach out to us and we’ll walk you through it.
