Joint tenants in common

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.