Inheritance Archives - Gem McDowell

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:

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.

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.

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.

Inheritance