will

PASSING IT DOWN:  RECIPES, TRADITIONS AND REAL ESTATE

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Like many of you, Fall is my favorite season of the year. The oppressive heat and humidity is finally starting to temper itself, the kids are back in school, football is being played once again, leaves are changing, and the holiday season is fast approaching. This week, we celebrate Thanksgiving, which just so happens to be my favorite holiday of the year. The Thanksgiving holiday naturally lends itself to so many time-honored traditions. It is a time family and friends gather to reflect on the important things in their lives and to overindulge in so many wonderful dishes.

The passing down of recipes through generations drew my mind to how real property is also passed from one generation to another. Ideally, property owners would properly plan for an orderly transfer of property through sound estate planning. Most wills express the testator’s intentions as to real property and grant the personal representative the power to effectuate the transfer. Other times, the will grants the personal representative the power to sell the property, creating a fiduciary duty to properly disburse the proceeds from that sale.

Under South Carolina Probate Code §62-3-711(c) a personal representative who has the power to sell pursuant to the decedent’s will may execute a deed in favor of a purchaser for value. This power is subject to §62-3-713, which prohibits transfers to the personal representative or certain related individuals or entities unless the will or a contract or court order authorizes the transaction. Pursuant to §62-3-910(B), a purchaser for value from a personal representative takes title free of heirs or other interested parties.

In the context of title insurance and in circumstances where either a will does not specifically grant a personal representative the power to sell real property or when a probate estate is opened in the absence of a will of a property owner, an Order from the Probate Court authorizing the personal representative to sell the subject property would be required to insure without taking exception to the possible interest of heirs or other interested parties.

Often times though, a property owner dies without leaving a will. Absent a proper directive from the decedent, one would turn to the laws of intestate succession, which can be found in the S.C. Probate Code at §62-1-101, et seq.  The law of intestate succession dictates how a person’s property is distributed by making the assumption that the decedent would want the property to go to the decedent’s closest relatives. 

Testate and intestate succession laws can sometimes get confusing.  However, whenever there is a doubt about the proper way to insure a transaction there is always a common correct answer: contact your title insurance underwriter.

This blog post began by reflecting on the changing of the seasons and the approach of the Thanksgiving Holiday. Appropriately, this is the perfect time to remember the many blessings in our lives. Perhaps more than any other time in the calendar year, Thanksgiving provides the opportunity to honor old traditions, create new ones and remember those that have passed on before us. May each of you enjoy time with family and friends and have an opportunity to reflect on those blessings and why they are so meaningful.

In the spirit of succession, having been born and raised in coastal South Carolina, I would like to share one of my favorite Thanksgiving recipes that has been passed down through my mother’s side of the family.  Happy Thanksgiving, everyone!

Oyster Cornbread Dressing

INGREDIENTS

  • 2 lb. unsweetened cornbread, cut into 1/2-inch cubes (about 12 cups)
  • 3/4 cup melted unsalted butter (1 1/2 sticks)
  • 5 tbsp. unsalted butter
  • 2 cups chopped onions (about 2 medium onions)
  • 1 1/2 cups chopped celery (about 3 ribs)
  • 2 cloves garlic, finely minced
  • 6 oz. country ham (the saltier the better), finely diced
  • 2 tbsp. chopped fresh sage leaves
  • 2 tsp. fresh thyme
  • 1 1/2 tsp. sea salt
  • 1 tsp. ground black pepper
  • 1/2 tsp. ground nutmeg
  • About 18 to 20 freshly shucked oysters, roughly chopped with liquor reserved
  • 1 cup chicken broth
  • 3/4 cup milk
  • 3 large eggs, lightly beaten
  • A few more tsp. unsalted butter

PREPARATION

  1. Heat oven to 400°F.
  2. Toss cornbread cubes with melted butter and lay out flat on a baking sheet, crumbs and all. Bake in the oven, stirring occasionally, for 30 minutes or until a nice toasty color forms on the cornbread.
  3. Meanwhile, melt the 5 tablespoons of butter in a large skillet over low to moderate heat. Stirring occasionally, sauté the onions, celery, and garlic until the onions are translucent, about 6 minutes.
  4. Transfer the cooked vegetables to a large bowl and add the toasted cornbread, tossing gently to mix. Add the ham, herbs and spices, and oysters with reserved oyster liquor, and mix with a rubber spatula.
  5. Warm the chicken broth and the milk together in a small pot just until simmering. Drizzle over dressing mixture and fold in. Fold in eggs.
  6. Lightly butter a 9-by-13-inch baking dish. Transfer the dressing into the baking dish and dot with a few teaspoons of butter. (The bread crumbs should be loosely stacked, not packed down tight.)
  7. Turn the oven down to 350ºF. Bake in the oven until the edges and the top are browned, about 30 to 40 minutes, keeping the pan covered with foil for the first half of the baking time. Serve hot out of the oven.

    “Mutual” will with third wife fails to defeat fourth wife’s omitted spouse claim

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    Early in my career, I practiced briefly in the area of estate planning. I attended week-long seminars and poured over tax laws. I even drafted a few irrevocable trusts for wealthy clients. But I was also representing real estate developers, and, at some point decided that I couldn’t keep up in both areas. So, I dropped estate planning in favor of real estate.

    But real estate lawyers need to know enough about estate planning to figure out who gets the real estate at the death of the owner, so the two areas often overlap, and I was often thankful I had a background in estate planning.

    I found a recent Court of Appeals case involving an omitted spouse claim by a fourth wife fascinating. Ward v. Ward* involved a mutual will and related documents between Stephen Ward and his third wife, Nancy.

    The spouses generally intended that the death of one would cause their assets to “pour over” into a trust controlled by the other. After the death of the surviving spouse, any remaining assets would be disbursed among each spouse’s children and heirs as detailed in their wills and trust documents. Both parties agreed that they would not amend the documents after the death of the first spouse.

    Those documents were executed in 2005. Nancy died in 2011. Later that year, Stephen began dating Mary, and they married in 2013. At the time of marriage, Stephen was 69 and Mary was 88. Stephen died in 2016.

    After Stephen’s death, his children sought to probate his estate, and Mary filed a petition seeking to have herself declared an omitted spouse.

    Several witnesses testified that Stephen’s intent when he executed the estate planning documents was to have those documents enforced as written, and that his estate plan would not be altered by a subsequent marriage.

    The Court of Appeals agreed that a testator’s intention, as expressed in his will, governs the construction of the will if it does not conflict with law or public policy. But the Court held that the testator’s intent must fail when it conflicts with the probate codes’ protection of a surviving spouse.

    Mary had only to prove that Stephen’s will was executed prior to their marriage and that it did not provide for her. Her claim to an omitted spouse’s share was affirmed.

    Justice Geathers dissented, stating that the only evidence in the present case shows that years before he met Mary, Stephen made it clear that he meant to leave a subsequent spouse nothing.

    Interesting case! I wonder whether our Supreme Court will have the chance to weigh in.

    *South Carolina Court of Appeals Opinion 6073 (July 24, 2024).