In most instances, South Carolina requires that estates are handled through the probate court process. Depending on several variables, it can take months or years to settle an estate.
Fortunately, there are other legal options when estate planning to transfer real estate upon someone's death. This includes joint tenancy, tenants in common, a living trust or a small estate probate. However, South Carolina does not recognize transfer-on-death deeds.
Do Estates Need to Be Probated in South Carolina?
The majority of estates do need to go through probate proceedings. In South Carolina, formal probate takes at least eight months, as creditors are allowed ample time to submit claims against the decedent’s estate. Probate can take even longer if another party contests the will, for which the court will likely have a hearing.
Also, the larger the estate, the longer it can take – some estates can be open for a year or more. In some instances, it may take several years before an estate is settled.
South Carolina does not require an attorney for this process, but they can help move things along. While most estates will go this route, there are other legal options in which the probate process isn’t necessary.
Does South Carolina Recognize Transfer on Death Deeds?
While some states recognize TOD deeds for certain types of property, South Carolina does not. The state’s joint tenancy laws provide a method for passing real property to others outside of probate.
Transfer on death, or TOD deeds, also known as beneficiary deeds, are used in place of a will to transfer a house or other real property assets to an heir.
TOD deeds typically include:
- Name of property owner.
- Property’s legal description, according to tax records.
- Named beneficiary of the property.
- That the deed is not effective until grantor’s death.
Creating a Valid TOD Deed
A TOD deed must be signed before a notary public to be valid. Then, the grantor takes the deed to their local county recorder’s office to record it, where it will be public record. If the grantor fails to do any of these steps, the deed will not be valid. The grantor retains control of their property until their death and can revoke the TOD deed at any time.
What Is Joint Tenancy?
Joint tenancy is a legal arrangement in which individuals own property together and have equal rights and obligations to it. Joint tenancy can occur between married and unmarried couples, relatives, friends or business associates.
This relationship creates a “right of survivorship” between the parties. When it is severed, it becomes a tenancy in common (TIC) without a right of survivorship.
Creating a South Carolina Joint Tenancy
In a joint tenancy in South Carolina:
- There are two or more owners
(joint tenants). Owners must have equal ownership of the property. Any individual can convey their interest without the other owners’ involvement or permission. When one owner conveys their interest, the joint tenancy becomes a tenants in common relationship. Creditors can reach the owners' interests. When two married owners get divorced, it converts joint tenancy to a tenancy in common.
* The property is subject to division, or partition, by a lawsuit brought by one owner against another owner to divide the property. The court physically divides the property, but if it cannot be physically divided, it will be sold and the proceeds split between owners.
Tenants in Common in South Carolina
In a tenancy in common (TIC), two or more parties legally share property ownership rights. Each owner controls a percentage of the total property.
When one owner dies, their share passes to the other owners, much like in a joint tenancy, but a TIC may have an "indestructible right of survivorship," meaning neither spouse can sever it unless they have an agreement and joint action between them to do so.
The are other differences between joint ownership through TIC and joint tenancy. With a TIC:
- The owners do not need to have equal share ownership of the property.
- No individual can convey their interest without the other owners’ involvement or permission.
- An owner’s creditors cannot reach that owner’s interest.
- The property is not subject to division or partition.
Passing Property Through a Living Trust
A "living" trust is another way to pass property to a beneficiary after death outside of probate. The property owner creates the trust while alive, naming the beneficiaries who will receive the property when they die. When a property is left through a will, probate can take months or years and be costly, but property left through a trust can be distributed almost immediately.
While a will is not required with a living trust, the grantor should have one to account for property that has not been transferred to the trust. The trustor may have created a living trust, but neglected to formally transfer the property to it. Or, they may have acquired property after setting up the trust.
In these instances, the property will not be distributed through the trust so a will is necessary to dictate how it is to be distributed.
South Carolina Probate and the Small Estate Affidavit
South Carolina law allows some beneficiaries to skip the probate process if the value of the deceased person’s assets is less than a certain amount. To do this, the beneficiary must create a document, or affidavit, and sign it under oath stating their entitlement to a specific asset.
When the party holding the property gets the affidavit and death certificate, it will release the asset to the beneficiary. This procedure is available if the property’s value, less liens and encumbrances, is $25,000 or less.
A probate judge will approve the affidavit, but there is a waiting period of 30 days. The beneficiary must file the affidavit in the probate court located in the county where the decedent lived.
- Read about the Probate Laws in South Carolina and how they can affect your estate planning. Order a copy of the Probate Handbook from the Continuing Legal Education Division of the South Carolina Bar Association, for a minimal fee. The website for the South Carolina Bar is www.scbar.org.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.