Joint tenants with rights of survivorship Archives

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.

How is Joint Tenants with Rights of Survivorship Created and Severed in South Carolina?

UPDATE: The Supreme Court of South Carolina took up this case on appeal and filed the opinion on September 18, 2024; read it here. It reversed in part, affirmed as modified in part, and remanded. The original post below covers the relevant background of the case and the decision of the South Carolina Court of Appeals. This brief update covers only the portion of the SC Supreme Court’s decision regarding joint tenancy with rights of survivorship (JTWROS).

The court upheld the decision of the lower courts allowing the joint tenancy between Jeffcoat and Perkins to be severed, though with different reasoning. Jeffcoat argued that South Carolina Code section 27-7-40 bars the unilateral severance of joint tenancy with rights of survivorship. The court declined to take a stand on the matter at this time, saying only that the statute doesn’t apply to the joint tenancy between Jeffcoat and Perkins. Their deed was executed over a month before the statute came into effect, and the statute does not apply retroactively. Therefore, their tenancy was subject to common law, which did allow the tenancy to be severed by unilateral conveyance by one cotenant to another party. With the joint tenancy severed, Jeffcoat and Williams are now tenants in common.

ORIGINALLY PUBLISHED FEB. 17, 2022:

One of the key benefits of holding property with someone as joint tenants with rights of survivorship is that when one cotenant dies, his/her share in the property automatically passes to the surviving cotenant(s). The property doesn’t pass through probate and it’s not subject to the decedent’s last will.

This makes joint tenancy with rights of survivorship (JTWROS) a popular choice for married and partnered couples. A common scenario is when one spouse dies, the surviving spouse stays in the home they had shared together, which is what most couples intend.

But JTWROS is no guarantee that this scenario will play out. If the joint tenancy is severed, the surviving cotenant automatically loses his/her rights of survivorship. He/She may even find himself/herself forced out of the home he/she shared for years with his/her partner/cotenant, if a court orders the partition and sale of the property.

That’s exactly what happened to Bradford Q. Jeffcoat, Jr., as described in Williams v Jeffcoat (find it here) which went before the South Carolina Court of Appeals in 2021. It’s an interesting case that delves into how JTWROS can be created and severed in South Carolina. If you currently own, or plan to own, property with another person as joint tenants, you should be aware of the court’s ruling in this case.

Williams v Jeffcoat Background

Jeffcoat and Sandra P. Perkins were domestic partners for twenty years. Together, they owned some real estate in Charleston that they held “jointly with right of survivorship, and not as tenants in common,” as per the deed. They lived there together from 2000 to 2015.

Starting in 2009, Perkins began suffering advanced dementia. By 2015, her condition had deteriorated to the point where Jeffcoat asked Perkins’ only child, Vanessa Williams, for help. Williams cared for her mother and took her back with her to her home in Alabama in June 2015.

Williams petitioned the Alabama Probate Court to appoint her conservator and guardian of her mother, which it did in September 2015. (Perkins had previously made Williams her agent in a durable power of attorney and a health care power of attorney.)

In November, Williams transferred her mother’s one-half interest in the Charleston property to herself in her capacity as her mother’s conservator. She then sought the partition and sale of the property. Her mother died this same month.

Both Williams and Jeffcoat filed motions for summary judgment. The case was heard by a master who granted Williams’ motion for summary judgment in June 2018 compelling the partition and sale of the Charleston property. Jeffcoat appealed.

Two issues were up for review: One was whether the Alabama Probate Court had subject matter jurisdiction to appoint Williams guardian and conservator for her mother; the SC Court of Appeals affirmed that it did. We won’t go into that issue further here, since our focus is joint tenancy with rights of survivorship. The other issue was whether the master erred in granting Williams’ motion for summary judgment compelling partition and sale.

To answer this second issue, the SC Court of Appeals went into detail in its opinion on how JTWROS are created and severed in South Carolina.

Creating Joint Tenancy with Rights of Survivorship in South Carolina

Joint tenancy can be established in SC either through statute or common law, states the SC Court of Appeals in the Williams v Jeffcoat opinion. People or parties that wish to own property together as joint tenants can do so by including the following words in the deed after their names: “as joint tenants with rights of survivorship, and not as tenants in common.” (“Tenants in common” is the other main way to hold property jointly in South Carolina, and there is also a third, less used alternative called “tenants in common with a right of survivorship” which you can read about on our blog here.)

Ending or Severing Joint Tenancy with Rights of Survivorship Under Statute in South Carolina

A joint tenancy with rights of survivorship can be severed in a number of ways under South Carolina law. Here are relevant parts of in SC Code 27-7-40 (and the full text is copied at the bottom of this blog post for reference as well):

(a) In addition to any other methods for the creation of a joint tenancy in real estate which may exist by law, whenever any deed of conveyance of real estate contains the names of the grantees followed by the words “as joint tenants with rights of survivorship, and not as tenants in common” the creation of a joint tenancy with rights of survivorship in the real estate is conclusively deemed to have been created. This joint tenancy includes, and is limited to, the following incidents of ownership:

(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants.

[…]

(v) If real estate is owned by only two joint tenants, a conveyance by one joint tenant to the other joint tenant terminates the joint tenancy and conveys the fee in the real estate to the other joint tenant.

[…]

(vii) Any joint tenancy in real estate held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage and vests the interest in both the parties as tenants in common, unless an order or decree of a court of competent jurisdiction otherwise provides.

(viii) The interest of any joint tenant in a joint tenancy in real estate sold or conveyed by a court of competent jurisdiction where otherwise permitted by law severs the joint tenancy, unless the order or decree of such court otherwise provides and vests title in the parties as tenants in common.

(ix) If real estate is owned by two or more joint tenants, a conveyance by all the joint tenants to themselves as tenants in common severs the joint tenancy and conveys the fee in the real estate to these individuals as tenants in common.

[…]

(c) Except as expressly provided herein, any joint tenancy severed pursuant to the terms of this section is and becomes a tenancy in common without rights of survivorship. Nothing contained in this section shall be construed to create the estate of tenancy by the entireties. Nothing contained in this section amends any statute relating to joint tenancy with rights of survivorship in personal property but affects only real estate. The provisions of this section must be liberally construed to carry out the intentions of the parties. This section supersedes any conflicting provisions of Section 62-2-804.

In short, death, divorce, or sale/conveyance of a joint tenant’s interest in the property are the ways in which a JTWROS can be severed under SC law. The joint tenancy then converts to tenancy in common (if multiple cotenants remain) or sole ownership (if just one owner remains).

The Williams v Jeffcoat Decision Allows JTWROS to be Severed Under Common Law in South Carolina

In South Carolina, JTWROS can also be severed under common law, ruled the SC Court of Appeals in Williams v Jeffcoat.

Jeffcoat argued that SC Code 27-7-40 prohibits one cotenant from conveying his/her interest in the property to a third party, which would mean that the joint tenancy he shared with Perkins was not extinguished and that the master erred in granting Williams’ motion for summary judgment.

If you read the above statute closely, you might have noticed that conveyance of a joint tenant’s interest to a third party was not one of the methods for severing a joint tenancy listed under subsection (a). Furthermore, the last line of subsection (a) states “This joint tenancy includes, and is limited to, the following incidents of ownership” (emphasis added).

The SC Court of Appeals concedes that the statute does contain “limiting language” but finds that this “does not prohibit common law methods of severance but rather addresses the language below detailing a cotenant’s rights in the property upon a cotenant’s death and subsequent to any conveyances between the cotenants themselves.” In its decision, the court stresses the need to interpret language not in isolated phrases but as part of the whole statute and in light of the intent of the General Assembly. The court also relies on precedent set previously by the South Carolina Supreme Court in Smith v Cutler (2005), in which it stated, “Unlike a tenancy in common with a right of survivorship, a joint tenancy with a right of survivorship is capable of being defeated by the unilateral act of one joint tenant.”

Under common law, the court writes, a JTWROS requires the four unities to be valid: the unities of interest, title, time, and possession. Unity of interest means all joint tenants have an equal interest in the property. Unity of title means all joint tenants are made cotenants and owners by the same document. Unity of time means all joint tenants receive their interest in the property at the same. Unity of possession means all joint tenants have a right of possession of all parts of the property without restriction.

If one of those elements is destroyed, so is the joint tenancy – and the rights of survivorship along with it.

Therefore, under common law, when a cotenant conveys their interest in the property to a third party, the joint tenancy is severed. Williams’ conveyance of her mother’s one-half interest in the Charleston property did sever the joint tenancy and extinguish Jeffcoat’s rights of survivorship, and the SC Court of Appeals affirmed the master’s decision to grant Williams’ motion for summary judgment compelling the partition and sale of the Charleston property.

Note that this is a decision from the South Carolina Court of Appeals, and so there is still a possibility that it could be appealed to the South Carolina Supreme Court.

Protecting Your Interests with Smart Estate Planning

Smart estate planning can help you protect your assets now and ensure that your wishes are carried out once you’re gone. One challenge is to think through all the possible ways things could go wrong in the future and protect against them now. It’s probable that Jeffcoat assumed he would inherit Perkins’ half of the property they shared together, and he never considered the possibility of her interest in the property being conveyed away before her death. Otherwise, he might have been able to take steps to protect against that happening.

For smart estate planning in South Carolina, call estate planning attorney Gem McDowell. He and his team at the Gem McDowell Law Group can help you with important estate planning documents like last wills, trusts, powers of attorney, and more, all tailored to you and your specific circumstances. More importantly, he’s a problem solver who can help you understand difficulties that could arise in the future and what can be done now to avoid them. To schedule a free consultation, call Gem at his office in Mt. Pleasant, SC at 843-284-1021 today.

Addendum: Full Text of SC Code 27-7-40 Creation of joint tenancy; filing; severance

(ii) In the event of the death of a joint tenant survived by more than one joint tenant in the real estate, the entire interest of the deceased joint tenant vests equally in the surviving joint tenants who continues to own the entire interest owned by them as joint tenants with right of survivorship.

(iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance.

(iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties.

(vi) If real estate is owned by more than two joint tenants, a conveyance by one joint tenant to all the other joint tenants therein conveys his interest therein equally to the other joint tenants who continue to own the real estate as joint tenants with right of survivorship.

(b) The surviving joint tenant or tenants may, following the death of a joint tenant, file with the Register of Deeds of the county in which the real estate is located a certified copy of the certificate of death of the deceased joint tenant. The fee to be paid to the Register of Deeds for this filing is the same as the fee for the deed of conveyance. The Register of Deeds must index the certificate of death under the name of the deceased joint tenant in the grantor deed index of that office. The filing of the certificate of death is conclusive that the joint tenant is deceased and that the interest of the deceased joint tenant has vested by operation of law in the surviving joint tenant or tenants in the joint tenancy in real estate.

Source: South Carolina Legislature website