What to Do After a Loved One Dies in South Carolina: A Practical Deep Dive
After the death of a loved one, there are many things to do – some personal, some administrative, and some legal. The following guide is intended to help you through that process, in the following general order:
- First things first
- Make funeral arrangements
- Gather important paperwork
- Inform parties of death (and stop or apply for benefits)
- Settle the estate
Do expect to jump around between sections, as things don’t always proceed step by step.
Don’t be daunted by all the checkboxes. You won’t need to do all the things listed below, as the exact tasks depend on individual circumstances.
Let’s get started.
1. First Things First
These items should be taken care of within the first hours and days after death.
– Identify the personal representative / executor. The personal representative (as it’s called in South Carolina) has the critical job of settling the estate of the deceased. This is usually a close loved one like a spouse or responsible adult child. The personal representative is named in the will; if there is no will, the probate court will appoint a personal representative. (See below under Settle the Estate for more details.)The personal representative is typically in charge of carrying out or delegating the tasks below.
– Find a funeral home to handle the remains and take care of arrangements. Even if there are no plans for a funeral, showing, or ceremony of any kind, a funeral director is licensed in the state to handle human remains and can help with the necessary paperwork, including the death certificate.
– Inform family and friends of the death, as well as the deceased’s workplace, school, agent(s) of POAs, guardian, conservator, or any other party relying on him or her. This is a task that can be divided among a few family members.At this time, you may also want to inform the family lawyer, financial advisor, and tax preparer/accountant as a courtesy and for help as needed throughout the process.
– Make arrangements for dependents and pets as needed, if arrangements have not already been made.
– Start vacating deceased’s home if required. If the deceased lived in an apartment or other rental, check the lease or speak with the landlord to determine how long you have to vacate the premises. It’s often 30 days, but it could be more or less. Important: Do not dispose of anything without the explicit permission of the personal representative. Ideally, the personal representative will take part in the cleaning process from the start.
2. Make Funeral Arrangements
– Ascertain the deceased’s last wishes. Surviving family members may already know what kind of service and burial/cremation the deceased wanted. If not, check whether the deceased included last wishes in his or her last will, living will, or advance directive, if available.
– Request honors for veterans and active-duty military. Surviving family members of eligible veterans and active-duty military members may request funeral honors and items such as the playing of Taps, a burial flag, an urn, and more. Your funeral director can make arrangements for honors at the service with 48 hours’ notice. You can request memorial items before or after burial. Learn more on the USA.gov Military Funeral Honors page here or call 1-844-872-4681.Certain veterans and active-duty military members may also be eligible to buried in a national cemetery. Learn more about that on the VA website here or call 1-800-698-2411 (TTY: 711).
– Make arrangements and hold services. Your funeral director will help you with the process, including requesting information or completing paperwork for compliance purposes.
In South Carolina, authorization is required for cremation. If the deceased filled out a pre-need authorization before death, that will be on file with the pre-selected funeral home or crematorium. If not, an at-need authorization form can be filled out by an agent of the deceased. You can find both these forms on the SC Board of Funeral Service page and scrolling down to the “Forms” section at the bottom, or navigate directly to the PDF here.
– Send thank you notes afterwards. It’s kind and customary to send a thank-you note to those who sent condolence notes and flowers, gave the eulogy, acted as pallbearers, performed music, or otherwise helped in planning and carrying out services, and anyone else whose presence or actions were a comfort to you.
3. Gather Important Paperwork
Much of tying up loose ends after someone’s death is submitting the right document to the right party. Here are the kinds of documents that should be collected:
Request official documents from the state
The links below are for deaths, marriages, and divorces that occurred in South Carolina. If you need records from another state, contact that state’s vital records agency or the relevant county clerk’s office.
– Death certificate. The funeral home will complete and file the death certificate in the county where the death occurred, and many funeral homes provide a limited number of copies to surviving family members.
Additional certified copies may be requested online, by phone, by mail, or in person from the Vital Records division of the SC Department of Public Health. Learn more on the Vital Records website here or call 803-898-3630.
We recommend getting ten (10) certified copies of the death certificate in most cases. Very complex estates could need more.
– Marriage certificate. Not always required. For marriages that occurred in South Carolina, request copies from relevant county or from the Vital Records department. Learn more here or call 803-898-3630.
– Divorce decrees. Not always required. For divorces that occurred in South Carolina, request copies of the Report of Divorce from the relevant county or from the Vital Records department. Learn more here or call 803-898-3630.
Obtain documents from the deceased’s personal files regarding:
- Last will and testament
- Social Security number
- Life insurance policies
- Retirement account and/or pension information
- Federal income tax returns for the past 3 years
- C. State income tax returns for the past 3 years
- Federal gift tax records
- Real estate deed(s)
- Mortgage(s)
- Vehicle title(s)
- Bank and financial account(s)
- Stocks and bonds information
- Credit card account(s)
- Veteran’s discharge papers (DD-214)
- Safe deposit information (and keys)
- Trust documents
- Adoption decree(s), as needed
- Bankruptcy papers
- Other documents specific to the deceased
This list is a good starting point. As you go through the process of settling the estate (see more below), you may find you need additional documents.
Tip: Where to look
Locating another person’s items after death can be challenging. Here are some places to look if you can’t easily find the documents above:
- File cabinets, folders, binders, safes are the first places to look
- Estate planning attorney who drafted the will, trusts, or other estate planning documents; some attorneys keep original copies
- Safety deposit boxes for important and sensitive documents
- Mail for correspondence on accounts, which can help you find account numbers
4. Inform Parties of Death and Stop and/or Apply for Benefits
Wait to formally inform creditors, like mortgage lenders and credit card companies, until after speaking with a probate attorney (see below). Do not wait to put a stop to benefits.
Inform relevant agencies and parties to stop benefits
If the deceased was receiving regular payments or benefits, the personal representative should ensure the government agencies are informed of the death as soon as possible (within a few days or weeks) to avoid overpayment. All overpayments must be paid back.
Federal-level agencies to inform, as needed:
– Social Security Administration (SSA) and Medicare. The funeral director usually reports the death to the SSA, which in turn informs Medicare. Learn more on the USA.gov website here. Verify with the funeral director that the SSA was informed, and if not, call to report the death yourself at 1-800-772-1213 (TTY: 1-800-325-0778).
– Veteran Affairs (VA). Report the death of a veteran to the VA as soon as possible. Learn more on the VA website here or call 1-800-827-1000 (TTY: 711).
– Defense Finance and Accounting Service (DFAS). Report the death of a military retiree to the DFAS as soon as possible to avoid overpayment. Learn more on the DFAS website here or call 1-800-321-1080.
– US Office of Personnel Management (OPM). Report the death to the OPM if the deceased was a federal employee (go here for more information) or a federal retiree (go here for more information) receiving benefits.
State-level agencies to inform, as needed:
– SC Public Employee Benefit Authority (PEBA). Report the death to PEBA if the deceased was a South Carolina State employee; learn more on the PEBA website here or call 1-888-260-9430.
– SC Department of Social Services (DSS). Inform the DSS if the deceased was receiving SNAP, TANF, KinGAP or foster-care payments, adoption assistance, or any other assistance program benefits. Learn more here or call 1-800-616-1309. Contact any other state-administered assistance programs as needed.
– SC Department of Employment and Workforce (DEW). Inform the DEW if the deceased was receiving benefits through the Unemployment Insurance program; call 1-866-831-1724, Relay 711.
Other parties to inform, as needed:
- Insurance company paying workers’ compensation benefits
- Insurance company paying long-term disability (LTD)
- Union or private pension providers
Tip: Check the deceased’s mail, documents, or bank statements, or call the employer’s HR department to find contact information of the correct party to notify.
This list may not be comprehensive. Contact all relevant parties as needed. The USA.gov website has a long list of federal agencies to potentially notify when someone dies; check that out here.
Inform other parties to close accounts or make changes as needed
The personal representative should inform the following parties, if relevant:
– US Postal Service (USPS). Learn how to stop or forward mail of the deceased on the USPS website here, or call or visit your local USPS location.
– US Citizenship and Immigration Services (USCIS). If the deceased was a petitioner, financial sponsor, or both for any pending USCIS application, inform the USCIS of the death, even if the deceased was a US citizen. Learn more on the USCIS website here or call 800-375-5283 (TTY 800-767-1833).Look into Humanitarian Reinstatement if Form I-130, Petition for Alien Relative, was approved before the petitioner’s death. Learn more about it on the USCIS website here.
– SC Department of Social Services (DSS). If the deceased was paying or receiving child support, or was enrolled in the Adult Protective Services (APS) program, the DSS must be notified. Find contact information for APS here and for child support here or call the Child Support Call Center at 1-800-768-5858.
– Credit bureau. Inform one of the three credit bureaus (Equifax, TransUnion, or Experian), which will inform the other two; learn more on the Experian website here.
Apply for benefits in a timely manner
The beneficiary should apply or verify eligibility for benefits in a timely manner. In cases where the surviving spouse or child is the personal representative, he or she will apply as the beneficiary. Otherwise, as a courtesy, the personal representative can advise the next of kin to complete these tasks if applicable.
Parties to contact, if relevant:
– Social Security Administration (SSA). Surviving family members may be eligible to receive a one-time lump sum death payment (LSDP) of $255 and/or ongoing benefits. Learn more on the SSA website here or call 1-800-772-1213 (TTY: 1-800-325-0778).
– Veteran Affairs (VA). Certain surviving family members are eligible to receive a Survivors Pension; learn more on the VA website here. Dependency and Indemnity Compensation (DIC) is also available to eligible surviving family members; learn more on the VA website here or call 1-800-827-1000 (TTY: 711).
– Department of Defense (DoD) Department of War (DoW). Eligible survivors of a member of the Armed Forces who died while on active duty or in other select circumstances may be entitled to a one-time, tax-free payment of $100,000. Learn more here.
– Defense Finance and Accounting Service (DFAS). If the deceased had enrolled in the Survivor Benefits Plan (SBP), then a Verification for Survivor Annuity form (DD 2656-7) will be sent in the mail to the address on record that must be completed and sent back to begin receiving annuity payments. Learn more on the DFAS website here or call 1-800-321-1080.
– US Office of Personnel Management (OPM). Upon being informed of the death, the OPM will mail a packet to survivors with forms to fill out and return to begin receiving benefits. Learn more here or call 1-888-767-6738.
– SC Public Employee Benefit Authority (PEBA). Complete required survivor-benefit claim forms to confirm eligibility of benefits; learn more on the (PEBA) website here or call 1-888-260-9430.
– SC Workers’ Compensation Commission. If the deceased’s death was work related, the dependent must file Form 52 within 2 years of the death to receive death benefits. Find more information on the FAQ page with a link to forms here or email claims@wcc.sc.gov with any questions.
– Union pension survivor benefits. If the deceased was part of a union (e.g., Teamsters or United Auto Workers), contact the union for instructions on what to do next.
This list may not be comprehensive. Contact all relevant parties as needed.
Inform personal and professional associations
Do this as a courtesy and/or to close accounts and prevent recurring dues/fees:
- Gyms and health clubs
- Professional groups and unions
- Alumni groups
- Hobby groups and associations
- Automobile service clubs
- Other organizations specific to the deceased
Note: If the deceased recently moved to South Carolina from another state or country, make sure to notify relevant out-of-state parties and check for any assets, benefits, or policies in that state or country.
5. Settle the Estate: Open Probate, Pay Debts, Distribute Assets
Soon after the decedent’s death, his or her personal representative (executor) should begin to administer the estate, ideally working alongside a probate attorney. Here is a brief overview of that process:
– Find a probate attorney. Working with a probate attorney is not legally required in South Carolina, but it is advisable to hire one unless the estate is very small and straightforward. Probate attorneys are paid out of the estate.The personal representative and probate attorney work together to complete the tasks below.
– File a petition for probate with the county probate court within 30 days. The probate court will officially appoint the personal representative, either an individual named in the will or (if there is no will) the next of kin. The most recent will (if any) and death certificate must be furnished to the court within 30 days.See below for links and/or phone numbers to South Carolina counties’ probate courts.
– For small estates: File a Small Estate Affidavit instead after 30 days. A streamlined process is available for estates valued at or below $45,000 with no real estate. A probate attorney can help determine whether this is an option.
(Note: the threshold for summary administration for small estates in SC was raised from $25,000 to $45,000 effective May 8, 2025; see SC Code § 62-3-1203. Not all county probate court pages, linked below, have been updated to reflect this change.)
– Inform creditors and other interested parties. A Notice to Creditors must be published in a newspaper once a week for three weeks. Some probate courts in SC now do this for you. In addition, send formal notices to interested parties, including heirs, beneficiaries, and known creditors such as:
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- Bank(s), credit union(s), brokerage firm(s).
- Mortgage company
- Credit card company
- Auto loan lender
- Other creditors
– Create an inventory and appraisement. List all assets in the probate estate and their estimated value on Form 350PC, Inventory and Appraisement, often available on the website of the county where the decedent died. Submit this to the court within 90 days of the appointment of the personal representative.
– Address Assets Not Subject to Probate. Not all assets are subject to probate. While they are not part of the probate estate, the probate attorney will often help as part of the process. If not, the personal representative can handle them (if he or she is the intended beneficiary) or, as a courtesy, advise the next of kin to do so.
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- Life insurance policies. This includes private, union or association, employer, and government-provided policies. Follow the company’s procedures for payment of proceeds to the named beneficiary. If the deceased was a federal employee or retiree with Federal Employees’ Group Life Insurance (FEGLI) coverage, notify the FEGLI; learn more on the OPM website here.
- Retirement account(s). Follow the procedures of the company managing the retirement account to ensure funds are paid to beneficiaries.
- Bank and investment accounts that are Payable on Death (POD) or Transfer on Death (TOD). Notify the institution to claim the funds.
- Properties owned as joint tenants with rights of survivorship (JTWROS). The survivor owns the property automatically without having to do anything. However, notifying the county of the death is advisable to keep the chain of title clean and avoid future headaches.
- Vehicles owned jointly or vehicles with a TOD beneficiary. Inform the SC Department of Motor Vehicles (DMV) of the death if a vehicle was owned jointly or had a Transfer-on-Death beneficiary. (If not owned jointly, the vehicle will be part of the probate estate.) Read more here about inheriting a vehicle.
- Trust assets. The probate attorney often helps administer existing trusts, including trusts attached to a pour-over will.
- 529 plans with successor owners. These plans are unique because they do not pass to the beneficiary, but to a successor owner. If no successor owner is designated, it will be part of the probate estate.This list is not comprehensive but covers the most common assets not subject to probate.
– Pay money owed. Debts and taxes are paid out of the estate first, including funeral bills, court and administration fees, attorney’s fees, and the personal representative’s fee (if not waived). Keep track of all transactions.
Note that creditors have eight (8) months from the time the Notice to Creditors is published or one year from the date of death, whichever is earlier, to make a claim against the estate.
Learn more about filing the final federal tax return after someone has died on the IRS website here and about the final SC State tax return here.
– Distribute assets. Assets may be distributed to heirs according to the terms of the will or, if no will, according to state intestacy laws.
– Submit a final accounting to the court. This document shows income, expenses, distributions, remaining assets, and more of the estate.
– Close the estate. Once everything is done, fill out and file a settlement or closing document as required by the county to officially close the estate.
South Carolina County Probate Courts Contact Information
Here are links and/or phone numbers for South Carolina probate courts / estate administration pages by county:
- Abbeville County: https://abbevillecountysc.com/probate-court/ (864) 366-5312, ext. 62
- Aiken County: https://www.aikencountysc.gov/376/Estates 803-642-1715
- Allendale County: no probate court page; (803) 584-3157
- Anderson County: https://www.andersoncountysc.org/departments-a-z/probate-court/ (864) 260-4000
- Bamberg County: https://www.bambergcounty.sc.gov/county-courts/probate-court (803) 245-5191
- Barnwell County: no probate court page; (803) 541-1031
- Beaufort County: https://beaufortcountysc.gov/probate-court/estate-administration.html (843) 255-5850
- Berkeley County: https://berkeleycountysc.gov/dept/probate/ (843) 719-4519
- Calhoun County: https://www.calhouncountyprobate.net/estates (803) 874-3514
- Charleston County: https://www.charlestoncounty.gov/departments/probate/estate.php (843) 958-5031
- Cherokee County: https://cherokeecountysc.gov/probate-court/ 864-487-2583
- Chester County: https://chestercountysc.gov/courts/probate-court/ (803) 385-2604
- Chesterfield County: https://www.chesterfieldcountysc.com/probate-court (843) 623-2574
- Clarendon County: https://www.clarendoncountysc.gov/our-government/probate/ 803-433-3263
- Colleton County: https://www.colletoncounty.org/probate 843-549-5571
- Darlington County: https://darcosc.com/courts_legal/probate_judge.php 843-398-4310
- Dillon County: https://dilloncountysc.org/courts/probate_judge.php (843) 774-1423
- Dorchester County: https://www.dorchestercountysc.gov/government/courts-judicial-services/probate-court/estate-division (843) 563-0100
- Edgefield County: https://edgefieldcounty.sc.gov/probate-court/ 803-637-4076
- Fairfield County: https://www.fairfieldsc.com/departments/probate-court/estate-administration 803-712-6519
- Florence County: https://www.florencecountysc.gov/offices/elected/probate-court/estate.php 843-665-3085 (ext. 2)
- Georgetown County: https://www.gtcountysc.gov/224/Probate-Court 843-545-3274
- Greenville County: https://www.greenvillecounty.org/probate/467.7170
- Greenwood County: https://www.greenwoodcounty-sc.gov/probate-court (864) 942-8500
- Hampton County: https://hamptoncountysc.org/25/Probate-Court (803) 914-2172
- Horry County: https://www.horrycountysc.gov/departments/probate-court/ (843) 915-5370
- Jasper County: https://www.jaspercountysc.gov/public-safety-offices/county-courts/probate-court/ 843-726-7700
- Kershaw County: https://www.kershaw.sc.gov/government/departments-h-q/probate-court/estates (803) 425-1503
- Lancaster County: https://www.lancastercountysc.gov/366/Probate-Court 803-283-3379
- Laurens County: https://www.laurenscountysc.gov/government/elected_officials/probate_court/index.php 864-984-7315
- Lee County: https://www.leecountysc.org/directory/departments___elected_officials/probate_court_judge.php 803-484-5341 ext. 3155
- Lexington County: https://lex-co.sc.gov/departments/probate-court/estate-administration (803) 785-8324
- Marion County: https://www.marionsc.org/departments/probate_judge/index.php (843) 423-8244
- Marlboro County: https://marlborocounty.sc.gov/government_/departments_.php#collapse1310b19 843-479-5610
- McCormick County: https://www.mccormickcountysc.org/departments/probate_court.php#outer-25 (864) 852-2630
- Newberry County: https://www.newberrycounty.gov/probate-court/estate-administration (803) 321-2118
- Oconee County: https://oconeesc.com/probate-home 864-638-4275
- Orangeburg County: https://www.orangeburgcounty.org/206/Probate-Court 803-533-6284
- Pickens County: https://www.co.pickens.sc.us/departments/probate_court/index.php (864) 898-5903
- Richland County: https://www.richlandcountysc.gov/Courts-Safety/Probate-Court/Estates 803-576-1961
- Saluda County: https://saludacounty.sc.gov/departments/probate 864-445-4500 ext. 2219
- Spartanburg County: https://www.spartanburgcounty.org/153/Probate-Court 864-596-2556
- Sumter County: https://www.sumtercountysc.gov/departments/j_-_r/probate_court/index.php 803-436-2166
- Union County: https://www.unioncountyprobate.net/ (864) 429-1625
- Williamsburg County: https://www.williamsburgcounty.sc.gov/311/Probate-Court 843-355-9321 Ext. 6200
- York County: https://www.yorkcountygov.com/169/Probate-Court 803-684-8513
Help with the Process
The process of settling someone’s affairs after death can seem daunting, but help is available. If you’re in the greater Charleston or Myrtle Beach area, call probate attorney Gem McDowell of the Gem McDowell Law Group at 843-284-1021 to schedule your free consultation today.
Learn More:
Check out these other related articles on our website by topic:
Personal Representative – Probate
I’m a Personal Representative – Now What? Rights, Roles, Responsibilities, and Risks
Clearing Up Confusion About Probate in South Carolina
Should Your Estate Go Through Probate? Why or Why Not?
Probate vs. Non-Probate: A Practical, In-Depth Look at Assets After Death in South Carolina
Wills – Inheritance – Disinheritance / Omission – Elective Share
What Happens If You Die Without a Will in South Carolina?
Left Out of the Will – Now What? Omitted Spouse, Pretermitted Child
The Omitted Spouse: When the Spouse is Left Out of the Will
I’ve Been Disinherited – Now What?
Spousal Elective Share: What It Is and How to Claim it in South Carolina
Heirs’ Property
What is the “Heirs’ Property Tax Relief Act”? Help Clearing Titles
Probate vs. Non-Probate: A Practical, In-Depth Look at Assets After Death in South Carolina
When someone dies and the estate is settled, not all of the assets are treated the same way. Some assets go through probate, while others pass outside of probate.
Assets that pass through probate are called probate assets.
Assets that do not pass through or go through the probate process are called non-probate assets.
If you are helping settle the estate of a loved one who recently died or are engaging in estate planning for yourself and your family, understanding this distinction is important.
Below is a practical, comprehensive overview of the topic that goes beyond the surface.
Why Probate vs. Non-Probate Matters
First, why does it matter?
Probate vs. non-probate is not just a legal technicality or a matter of semantics. It has real-world implications for the heirs and beneficiaries.
Whether an asset like a house, vehicle, or bank account is subject to probate or not will determine:
- How quickly the heir/beneficiary can take possession of certain assets
- Whether court oversight is required
- Whether the asset can be used/liquidated to satisfy creditors
- Whether the asset goes into the probate estate or not
On this last point, only assets subject to probate make up the “probate estate.” It’s from this pool of assets that debts, taxes, and other expenses are paid, and what’s left over is then divided among heirs. If someone has purposely tried to avoid probate, the probate estate itself will be small or non-existent. Read more about what it means to avoid probate in South Carolina, and why it’s not always necessary.
We’ll look at the probate process more below. Next, what assets are subject to probate, and what aren’t?
Probate Assets vs. Non-Probate Assets (Which Assets Are Always, Never, Sometimes Subject to Probate)
Whether an asset is subject to probate or not does not depend on whether there’s a valid will. Instead, it’s the legal mechanism of transfer that determines whether the asset is subject to probate or will pass outside of it.
- Probate: When the succession of ownership is determined either by the terms of the will or (if there is no will) by state intestacy law, the asset is subject to probate.
- Non-probate: When the transfer of ownership is controlled by beneficiary designation, survivorship terms, or contract language, the asset is not subject to probate.
Assets subject to probate in South Carolina:
- Real estate owned solely by the deceased
- Deceased’s share in real estate owned as joint tenants in common (TIC)
- Bank accounts solely in the name of the deceased with no valid POD (payable on death) designation
- Bank accounts owned jointly without explicit survivorship language
- Investment accounts with no valid beneficiary or TOD (transfer on death) designation
- Vehicles, etc.*, owned solely by the deceased
- Deceased’s share in a vehicle, etc.*, owned jointly with “AND” in the title
- Deceased’s interest in a business without a valid written succession plan
- Life insurance proceeds payable to the estate rather than an individual beneficiary
- Life insurance proceeds from a policy with missing or invalid beneficiaries
- Retirement accounts with missing or invalid beneficiaries
- Unpaid wages, commissions, or refunds owed to the deceased at the time of death
- Personal property (e.g., furniture, jewelry, clothing, physical cash)
Assets not subject to probate in South Carolina:
- Real estate owned as joint tenants with rights of survivorship (JTWROS) or owned with explicit survivorship language in the deed
- Vehicles, etc.*, with a TOD designation
- Vehicles, etc.*, jointly owned with “OR” in the title
- Deceased’s interest in a business with a valid written succession plan
- Life insurance proceeds from a policy with a valid named beneficiary
- Retirement accounts with a valid named beneficiary
- Annuities with a valid named beneficiary
- POD (payable-on-death) bank accounts
- TOD (transfer-on-death) investment accounts
- Assets correctly held in certain trusts
* “Vehicles, etc.” includes any property for which the SCDMV issues a title of ownership, including motor vehicles, mobile / manufactured homes, trailers / campers / RVs, etc.
Assets sometimes subject to probate depending on how they are owned/titled, include (but are not limited to):
- Mineral rights
- Digital assets
- Timeshares
- Intellectual property
- Promissory notes
- Structured settlements
A probate attorney can help unravel ownership and how these assets should be handled.
Cheat Sheet Chart by Asset and Ownership
Here’s a chart summarizing how different assets are categorized as probate or non-probate in South Carolina depending on how they are owned or titled:
| Deceased’s interest in: | Subject to probate: | Not subject to probate: |
| Real estate / real property | Owned solely by the deceased
Owned jointly as tenants in common (TIC) |
Owned jointly as tenants with rights of survivorship (JTWROS) or otherwise owned jointly with explicit survivorship language |
| Vehicles, inc. motor homes, RVs, etc. | Owned solely by the deceased without valid TOD designation
Owned jointly with “AND” in the title |
Owned solely with valid TOD designation
Owned jointly with “OR” in the title |
| Bank and investment accounts | Owned solely by the deceased without a POD or TOD designation
Owned jointly but without explicit survivorship language |
Owned solely by the deceased with a valid POD or TOD designation
Owned jointly with explicit survivorship language |
| Retirement accounts, life insurance proceeds, and annuities | Proceeds from policies and accounts with missing or invalid beneficiaries
Life insurance proceeds payable to the estate rather than an individual |
Proceeds from policies and accounts with valid named beneficiaries
|
| Business (LLC, partnership, etc.) | Interest in business without a valid written succession plan | Interest in business with a valid written succession plan |
| Other | Unpaid wages, commissions, refunds owed to deceased at time of death
Personal property (e.g., furniture, jewelry, clothing, physical cash) |
Assets correctly held in trust |
Where Probate vs. Non-Probate Gets Complicated
The lists above are nice and neat, but they don’t fully reflect the sometimes-messy reality of probate. Here are some areas to watch out for that can cause confusion:
“Joint ownership” without survivorship language. In South Carolina, joint ownership doesn’t mean automatic ownership for the surviving co-owner. There must be explicit language regarding survivorship succession for the asset to pass outside probate. For real property, this means survivorship language in the deed itself. For bank accounts or investment accounts, this means survivorship language in the account agreement. If that language is missing, the deceased’s interest in that asset will be subject to probate.
Property located or titled in another state. Different states recognize different forms of ownership, which can affect whether an asset is subject to probate.
For example, South Carolina has not recognized a type of ownership of real property called “tenants by the entirety” (TBE) since 1953, but several other states still do. If a property owned as TBE is located in another state, a South Carolina court will follow the rules of that state. This usually means ownership of the deceased’s interest in the property will automatically pass to the surviving tenant outside probate. But if a property owned as TBE is located in SC (rare, but it can happen), and the deed does not contain explicit language on survivorship, it will be treated as if it were owned as joint tenants in common. Then the deceased’s interest in the property will be subject to probate.
Insolvent estates. Many assets passing outside of probate are shielded from creditors by law, but not all. In cases where the estate is insolvent – i.e., there’s not enough in the probate estate to cover debts, taxes, and other expenses – creditors may be able to recover from certain non-probate assets, even though they are not part of the probate estate.
Undetected errors, mistakes, and inconsistencies. Assets intended to pass outside of probate may end up in the probate estate for a variety of reasons, including named beneficiaries who are pre-deceased or missing, mistakes in language on a deed or title, unenforceable business operating agreements or buy-sell agreements, or improperly funded trusts. These kinds of errors only come to light in the course of settling the estate.
How Ownership of Probate Assets Passes, and How Long It Takes
Assets subject to probate must go through probate, the process of tying up legal and financial loose ends after a person dies, in order to be put in the heir’s possession.
The probate process is overseen by the county’s probate court. The personal representative, whose job it is to settle the estate of the deceased, often works with a probate attorney to get it done. Probate assets can only be transferred to heirs after approval from the probate court. Read more about the steps and costs of probate or read more about the role of the personal representative (aka executor) in South Carolina.
The personal representative and the probate attorney create an inventory of the deceased’s outstanding debts and assets. The assets subject to probate make up the “probate estate.” Debts, expenses, and final taxes are paid first out of the probate estate. Only then are the remaining assets distributed among heirs either according to the terms of the valid will or according to state intestacy laws. Read more about what happens to a person’s estate when they die “intestate” (without a will) and read more about the importance of probating the estate and taking the step-up in basis.
Timeline: How quickly heirs can take possession of their inheritance depends in part on state law, in part on the estate’s complexity and solvency. South Carolina law gives creditors eight months from the time notice is published to make a claim and expects most estates to be closed within three years after death.
Small estates: Small estates (estates with no real property that are valued under $45,000 as of May 2025) may qualify for a simplified, expedited process. Assets may pass to the heir(s) within just a few months after death.
Most estates: Disbursements typically occur within 9-12 months for most estates. If the estate is clearly solvent and straightforward, the personal representative may begin making partial disbursements even before the full eight months has passed.
Complicated and/or potentially insolvent estates: Disbursements typically occur once all outstanding issues (lawsuits, liens, debts, etc.) have been resolved, which may be many months or even years after death.
How Ownership of Non-Probate Assets Passes, and How Long It Takes
Ownership of assets not subject to probate passes according to the way the asset is owned or titled. Ownership is transferred:
Either automatically: For some assets, ownership passes automatically upon death without the heir/beneficiary having to do anything. E.g., interest in real estate owned as JTWROS or otherwise owned jointly with explicitly survivorship language in the deed; interest in a vehicle jointly owned with “OR” in the title; bank accounts owned jointly with survivorship language; and assets owned in certain kinds of trusts.
While it’s not absolutely necessary, the heir may have vehicles and real property retitled in his or her name only to keep the chain of title clean.
Or after claiming: For other assets, the heir/beneficiary must claim them to take legal possession. This usually requires submitting a claim form along with the death certificate and any other information required under the rules of the particular asset. E.g., life insurance proceeds, retirement account proceeds, POD or TOD accounts, and annuities.
Timeline: Heirs/beneficiaries may take or claim possession of non-probate assets right away without waiting for any set amount of time to pass. Approval from the probate court is not required. (Remember, however, that some non-probate assets may still be subject to creditors’ claims if the estate is insolvent.)
For Help with Estate Planning and Probate in SC, Call Gem McDowell
Are you the personal representative in charge of settling a loved one’s estate? Or are you looking for help with your own comprehensive estate plan? Gem and his team at the Gem McDowell Law Group can help. Gem has over thirty years of experience practicing in South Carolina, including helping families navigate the probate process and creating custom estate plans that avoid surprises and ensure peace of mind. Call today to schedule your free, no-obligation consultation. Offices in Myrtle Beach and Mt. Pleasant, SC. Call 843-284-1021 today.
Can I Disinherit My Child? Strategies for Disinheriting a Child from Your Will
The short answer is YES.
Yes, when writing your will, you have the power to disinherit your child and leave nothing to him or her. This is true in every state except for Louisiana, which does not allow a testator to disinherit a child under the age of 24 under the state’s “forced heirship” laws.
Leaving an inheritance to your child or children is not a legal requirement. But it is a cultural norm, and many children expect to inherit something upon the death of a parent. Some of those children then go on to contest the will or take other legal action to try to get what they believe is their fair share of the deceased’s estate.
For that reason, consider using some of the strategies below when intentionally disinheriting a child to reduce the likelihood of litigation after your death. The goal is not only to ensure your child doesn’t inherit a large amount from your estate, but also to help prevent legal action that could invalidate the will entirely.
Strategies for Disinheriting a Child in Your Will
Make your intentions clear
Name the child and be explicit about your intentions. Use language like: “I have intentionally chosen to make no provision for [Child’s Full Name] in my will.” (Consult an attorney in your state for the exact language to use in your will.)
Without this kind of language in the will, a child can make the case that the parent simply forgot to include them and make a claim for a share of the estate.
Consider a small inheritance instead of nothing
Rather than leave your child $0, you may want to leave a modest sum. It should be large enough to deter your child from taking legal action. This can soften the blow of being fully disinherited, too.
Include a “no-contest clause”
The tactic above is especially effective when used in conjunction with a “no-contest clause.” A no-contest clause states that if the child contests the will, he or she will not receive the inheritance.
Note that not all states recognize or enforce no-contest clauses. South Carolina does.
Disinheriting a Child FAQs
Should you include the reason for the disinheritance in the will?
In many cases, it’s best not to specify why you’re disinheriting the child. For one, wills become public during probate, so omitting details helps maintain privacy. Also, stating a reason could provide the disinherited child with grounds for contesting the will.
However, if you’re not leaving anything to your child in the will because you’ve made provisions for him or her outside the will, then it can be helpful to include this information.
To tell or not to tell?
A common question when disinheriting a child is, “Should I tell my child they are not in the will?”
At our firm, we advise our clients not to tell the child that he or she is being disinherited, for two main reasons.
- You may change your mind. Relationships and circumstances change, and you may decide in the future to make a new will leaving an inheritance to your child.
- Telling a child he or she is being disinherited can allow them to start building a case to eventually contest the will.
This does happen. We had someone call us who was upset his mother’s will left everything to his three siblings and nothing to him, as he had essentially already received his inheritance outside the will. He wanted to sue, which we told him was not possible as his mother was still alive. Instead, he started to monitor her movements, hoping to gather evidence of lack of testamentary capacity so he could contest the will after her passing.
Ultimately, it’s your decision whether to tell your child what’s in your will or not. In our experience, we recommend not doing so.
Call Estate Planning Attorney Gem McDowell
For help creating or updating a will, call Gem at the Gem McDowell Law Group. He and his team help individuals and families in South Carolina create personalized wills and estate plans that reflect their unique circumstances, family dynamics, and wishes. Call or contact us at our Myrtle Beach or Mount Pleasant, SC offices today to schedule a free consultation at 843-284-1021.
I’ve Been Disinherited – Now What? (And Is Contesting the Will Worth It?)
You were expecting an inheritance, but you were left out of the will. Now what? Is there anything you can do if you’ve been disinherited?
Maybe. State law protects spouses from being intentionally and unknowingly disinherited and gives other would-be heirs grounds on which to contest the will.
In this blog we’ll look at what you can do if you’ve been disinherited – that is, intentionally left out of the will. (If you were unintentionally left out, you were not “disinherited” but “omitted” or “pretermitted.” Read our blog on omitted spouse / pretermitted child for what to do next.) We’ll also consider the question of whether contesting the will is worth it.
Note that laws governing wills and probate vary by state, so while many of the concepts below apply to other states in addition to South Carolina, be sure to speak with an estate planning attorney in your state.
First things first:
Are You Entitled to an Inheritance?
Only a surviving spouse is protected from being unknowingly disinherited; more about this below.
No one else – not even a child of the deceased – is entitled to an inheritance in South Carolina. While there is a cultural custom and even expectation that parents will leave something to their children after death, it is not a requirement.
What To Do When You’ve Been Disinherited
Speak with an attorney in your state with experience handling will contests about your situation. Many law firms (including ours) offer a short, free consultation, which can help you understand what your options are.
The next steps depend on your unique circumstances. You may decide to do one of the following:
– Claim Spousal Elective Share
A disinherited spouse may claim “elective share,” a portion of the decedent’s estate guaranteed under the law to a surviving spouse in separate property states like South Carolina. The surviving spouse is entitled to this share regardless of the terms of the will, unless the couple has previously signed a waiver of elective share or similar document.
Read more about Elective Share in South Carolina and how to claim it here.
– Contest the Will
In general, a testator (the person writing the will) has broad authority to decide how to dispose of his or her assets, and the probate court will follow the testator’s wishes as recorded in the will. If he or she did not leave anything to you in the will, that’s usually the end of the matter.
However, there are situations in which a will, or portions of it, can be declared invalid if challenged. South Carolina Probate Code Section 62-3-407 provides the following six grounds on which to contest a will:
- Lack of testamentary intent or capacity
- Revocation
- Mistake
- Fraud
- Duress
- Undue influence
Read more about grounds for contesting a will in our blog here where we go into depth. In addition to the six statutory grounds, South Carolina courts may also invalidate provisions of a will that violate public policy, such as those that promote unlawful behavior or are discriminatory.
To contest a will, you must be an interested party, i.e., you would stand to inherit if successful in your claim. Further, the burden of proof is on you to prove the will is not valid, under the same section cited above. The presumption of the court is that the will is valid, so it’s your responsibility to provide enough evidence to overcome that presumption.
– Sue an Individual for Interference with Inheritance
Some states recognize an “intentional interference with inheritance” (IIWI) claim. This allows a would-be heir to sue someone whom they believe intentionally prevented them from receiving an inheritance through fraud, undue influence, defamation, or similar misconduct.
South Carolina does not recognize this cause of action as of August 2025, but that could change in the future.
– Accept the Terms of the Will and Not Pursue the Matter
It can be hard to accept that you were disinherited, especially if you had a good relationship with the deceased and were expecting an inheritance. You might think it’s unfair that your parent left everything to his or her spouse instead of the kids, or that siblings received unequal amounts, or that your partner left everything to the children from a previous marriage.
But wills don’t have to be fair; they often aren’t. Unfair and legally invalid are not the same thing, however. Many times, the prudent course of action is to accept the will as is and move on.
Contesting the Will: Is It Worth It?
We get calls from people who are blindsided, and often very upset, after discovering they’ve been cut out of a relative’s will. They are prepared to jump into litigation to get what they believe is rightfully theirs.
Here’s the truth: The process of contesting a will is expensive, challenging, and time-consuming – and that’s true even in the best-case scenario, when things go your way. If they don’t, you will be out a lot of money and may have irreparably damaged relationships with relatives and friends.
Before contesting a will, you need to know if it’s worth it. Ask yourself:
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What would you stand to gain in the best-case scenario?
Hint: It could be less than you think.
In many cases, people discover that the actual inheritance would be much less than what they had expected. This is especially true for estates of modest and average size. The Federal Reserve has an interesting article with data on expected vs. actual inheritance; see Panel B, which shows those in the bottom 50% by wealth, expected, on average, an inheritance of $29,400 but received just $9,700 – a substantial difference.
Why the discrepancy?
For one, inheritance comes from the decedent’s probate estate, after expenses are paid. A will only directs where assets subject to probate should go. (Read more about probate and which assets are subject to probate here on our blog.) From that, heirs inherit their portion after taxes, debts, probate fees, administrative costs, attorney fees, and funeral expenses have been paid out of the value of the estate. These expenses can eat up a large portion, leaving behind a much smaller estate to divvy up between heirs.
Also, just because a person is wealthy, it does not mean his or her probate estate will be large. Many people use trusts and other estate planning instruments to keep assets out of their probate estate. You may discover that the value of the probate estate is actually very small, even if the deceased was very wealthy.
You also have to consider how many people would share the inheritance. The number of other heirs you would split an inheritance with depends on how the probate court determines the assets should be distributed. It could be under the terms of the current will after certain provisions have been struck; under the terms of a previous will; or under state intestacy laws, which apply when someone dies without a will.
In one case we worked on, a man was upset that his mother’s will left everything to her husband (his stepfather) and nothing to him and his brothers. If he successfully contested the will, South Carolina’s intestacy laws would apply because there was no previous will. That means half would go to his stepfather and the other half would be divided between the four siblings. He’d stand to get just ¼ of ½ of the estate, or 12.5%.
Now, that figure doesn’t mean anything in and of itself; 12.5% of $10,000 isn’t a life-changing amount of money, but 12.5% of $10,000,000 is. It depends on the particular circumstances. But that brings us to the second question you should ask yourself.
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Risk Vs. Reward: What’s Your Tolerance?
Let’s say you stand to inherit 12.5% of an estate worth $10 million after all taxes, debts, and fees have been paid, which comes out to $1,250,000. It will take about $50,000 in legal fees to successfully contest the will. In this case, yes; if you have a strong case, risking $50,000 for the potential to gain $1,250,000 is worth it.
What about spending $10,000 for the potential to gain $17,000? A woman called our office upset that her mother had cut her out of the will and left everything to just one of the three sisters. If she prevailed in contesting the will, she’d split her mother’s roughly $50,000 estate with her two sisters (because there was no surviving spouse), which comes out to around $17,000. Is risking $10,000+ in fees for a shot at <$17,000 worth it?
In addition to risking her money, this woman would risk fracturing her relationships with her sisters, which brings us to the third question to ask yourself.
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Can You Accept the Non-Monetary Fallout?
Be prepared for the possible ramifications that have nothing to do with money. Contesting a will and battling over a deceased relative’s estate often leads to the destruction of previously solid relationships and family bonds. We see it every day, unfortunately.
Think about how much those relationships are worth to you before moving ahead with contesting the will.
Have You Been Disinherited? Do You Need Help with Estate Planning? Call Gem
The above is not intended to dissuade you from taking legal action, but to help you see the situation from a legal point of view. Maybe you believe the potential financial reward is worth the risk. Or maybe you’re not motivated by money but by the desire to right a wrong and ensure your loved one’s true wishes are carried out, especially if you believe there’s been fraud, duress, or undue influence. Whatever your situation is, we urge you to consider the questions above if you’re considering contesting the will.
Speaking with an estate planning / probate attorney in your state is a good first step. An attorney can help you claim elective share (if you’re a disinherited spouse) or help you determine whether taking legal action like formally contesting a will is likely to succeed.
Call estate planning attorney Gem McDowell for help probate, creating a will, contesting a will, or other estate planning matter in South Carolina. Gem and his team at the Gem McDowell Law Group help individuals and families across South Carolina create personalized wills and comprehensive estate plans for peace of mind, as well as handle issues of probate and inheritance. Call Gem and his team at their Myrtle Beach or Mt. Pleasant, SC offices today at 843-284-1021 to schedule a free consultation.
