Greenville, SC asked in Real Estate Law and Probate for South Carolina

Q: SC-Husband &Wife own home free and clear,husband dies, can wife quit claim deed property to son without probate?

Does house have to go through probate or can the wife just transfer ownership to her son?

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1 Lawyer Answer
Nina Whitehurst
Nina Whitehurst
  • Probate Lawyer
  • Crossville, TN

A: It depends on how title was held by husband and wife. If they held as tenants in common then, no, the husband's share needs to be probated. If it was held as joint tenants with right of survivorship or tenants by the entirety then, yes, wife is now the sole owner.

However, before quitclaiming to her son, assuming this is being done for estate planning or Medicaid pre-planning or other purposes, wife should consult with an estate planning or elder law attorney about the effect a quitclaim deed will have with respect to:

1. Title insurance. The quitclaim deed will probably be an uninsured transaction.

2. Estate taxes. The quitclaim deed might be a taxable gift.

3. Income taxes. Loss of step up in basis at wife's death, and loss of Section 121 capital gains tax exclusion.

4. Control. Wife will have lost complete control of the property. If wife wants to continue to live in the house, this could end up being a really bad decision.

5. Medicaid. This would convert a non-countable asset into a potentially large penalty period if wife needs Medicaid to pay for nursing home expenses in the future.

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